the iraqi criminal justice system, an introduction

Denver Journal of International Law & Policy Denver Journal of International Law & Policy

Volume 39 Number 1 Winter Article 7

January 2010

The Iraqi Criminal Justice System, an Introduction The Iraqi Criminal Justice System, an Introduction

Dan Warnock

Follow this and additional works at: https://digitalcommons.du.edu/djilp

Recommended Citation Recommended Citation Dan Warnock, The Iraqi Criminal Justice System, an Introduction, 39 Denv. J. Int'l L. & Pol'y 1 (2010).

This Article is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected].

https://digitalcommons.du.edu/djilp

https://digitalcommons.du.edu/djilp/vol39

https://digitalcommons.du.edu/djilp/vol39/iss1

https://digitalcommons.du.edu/djilp/vol39/iss1/7

https://digitalcommons.du.edu/djilp?utm_source=digitalcommons.du.edu%2Fdjilp%2Fvol39%2Fiss1%2F7&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected],[email protected]

mailto:[email protected],[email protected]

THE IRAQI CRIMINAL JUSTICE SYSTEM, AN INTRODUCTION

DAN. WARNOCK*

The purpose of this article is to serve as a brief introduction to the criminaljustice system, such as it is, in Iraq today. It is based on my review of the IraqiCriminal Procedure Code,1 my discussions with a small number of individuals-both Iraqi and American-familiar with the system, and my own (admittedly-limited) observations of the system during a six-month military deployment toBaghdad.2

One might argue-as many U.S.-trained common-law attorneys do-that acriminal justice system that neither adheres to stare decisis nor atomizes crimesinto "elements" can hardly provide true justice. An equally-plausible argument

* Dan. L. Warnock, Major, USAF (J.D., American University) is an attorney with the United States AirForce Judge Advocate General's Corps. The views expressed in this Article are those of the author anddo not reflect the official policy or position of the U.S. Air Force, Department of Defense, or the U.S.Government.

1. Criminal Procedure Code No. 23 of 1971 (translated alternately as "Law on CriminalProceedings, With Amendments" and "Criminal Procedure Code") [hereinafter Criminal ProcedureCode]. The Criminal Procedure Code contains procedural guidelines for all criminal investigations andtrials of felonies and misdemeanors in Iraq. It appears that an official translation was never publishedin the English edition of Al-Waqai AJ-Iraqiya (The Iraqi Gazette), the Government of Iraq's officialweekly register of national-level policy pronouncements (laws, regulations, and Republican CouncilOrdinances). However, there are two basic translations of the Code, both undated, both anonymous.The best sources on the internet for the translations, and a variety of other reference materials, are theGlobal Justice Project: Iraq (GJPI) sponsored by the S.J. Quinney College of Law at the University ofUtah, Criminal Procedure Code 23 of 1971, GLOBAL J. PROJECT: IRAQ, (Apr. 25, 2009),http://www.gjpi.org/2009/04/25/criminal-procedure-code-23-of-1971/. and Grotian Moment: TheInternational War Crimes Trial Blog sponsored by the Case Western Reserve University Law School,Iraqi High Tribunal Trials, Grotian Moment: The International War Crimes Trial Blog,http://law.case.edu/saddamtrial/index.asp?t=l (last visited Oct. 7, 2010). The original translations,including the one posted on the Case Western site, were made between September 1984 (the date of themost recent amendment annotated therein-see Criminal Procedure Code, art. 160) and October 1988(the date of the next most recent amendment thereafter-to Article 47, which is not captured in thetranslation). The version on the GJPI site (currently dated Mar. 14, 2010) is an update of the sametranslation incorporating subsequent amendments. It has addressed many typographical errors andomissions (e.g., it now includes Article 77 which was previously missing), but it still uses the Britishspelling of most words.

2. I was deployed in mid-2007 with the initial contingent of the Law and Order Task Force(LAOTF), an experimental unit envisioned by General David Petraeus, then-commander of Multi-National Forces-Iraq, and his Staff Judge Advocate (lead attorney), Colonel Mark Martins. One of ourmissions was to help with the construction and initial case-processing of the newly-formed RusafaBranch of the Central Criminal Court of Iraq (CCCI). Although I was able to learn much about Iraqiblack-letter criminal law during my deployment, my exposure to the practical aspects of the system isadmittedly limited.

DENV. J. INT'L L. & POL'Y

could be made that true justice cannot be achieved in a system that insists onhaving a defendant's fate decided by a lay peer jury with no legal training and thatbuilds a complex network of evidentiary rules that restrict consideration of relevantand probative evidence. To a significant extent, one's determination of justice isbased in large part on whether one finds justice in doing right by society (i.e.,punishing the guilty despite any corruption or misconduct by the governmentinvestigators) or in doing right by the individual (letting an obviously-guilty persongo free in order to "punish" the "system").

Although this philosophical dilemma partly prompted this article, it is beyondits scope. This article will not conduct a normative analysis of any particular legalsystem, nor does it propose to conduct a comparative analysis of the civil law trial-by-judge system such as it exists in Iraq and the common law trial-by-jury systemused in criminal trials in the United States. Instead, the goal of this article is tostep through the Iraqi criminal justice system writ large-as it is envisioned in theIraqi Criminal Procedure Code and as I have seen it in practice.

I. IRAQI CRIMINAL JUSTICE SYSTEM-THE PLAYERS

During its short-lived tenure as the de facto Government of Iraq, the CoalitionProvisional Authority (CPA) attempted a limited overhaul of the Iraqi criminaljustice system. 3 One change was the creation of the Central Criminal Court of Iraq(CCCI);4 a court with sweeping, nation-wide criminal jurisdiction5 but a specificmandate to focus on terrorism, organized crime, corruption, and other seriouscases.6 Fortunately for the Iraqis, the CPA did not try to impose procedures or

3. For example, the CPA abolished the death penalty (although later it was reinstated by theIraqi-elected government). It also deleted a series of political crimes from the Iraqi Penal Code.Although duly-elected governments subsequent to the extinction of the CPA have directly addressedsome of the CPA's actions, I have no data on which to judge the extent to which members of the Iraqibar-and more specifically the Iraqi judges- accept as legitimate, and accord credence to, the sumtotal of all changes to Iraqi law made by the CPA.

4. See Coalition Provisional Authority Order No. 13 of 2004 (forming the Central Criminal Courtof Iraq) [hereinafter CPA Order No. 13]. Although the Code translation available on the GJPI website,GLOBAL J. PROJECT: IRAQ, supra note 1, properly advises at page 3 that "publication in... [The IraqiGazette] would appear to be ... regarded as a de-facto requirement" for legitimacy of any Iraqi legaldecree, I have been unable to determine whether CPA Order No. 13 was properly published in The IraqiGazette. Regardless, the Iraqis obviously accept the legitimacy of the CCCI, as it has been incontinuous operation since 2004 - investigating, trying, and sentencing thousands of Iraqi citizens.

5. CPA OrderNo. 13, § 18(1):The CCCI shall have nationwide discretionary investigative and trial jurisdictionover any and all criminal violations, regardless of where those offenses occurred.Its jurisdiction shall extend to all matters that could be heard by any local felony,or misdemeanor court.

The traditional Iraqi courts, consisting of investigative courts, misdemeanor (trial) courts, and felony(trial) courts, have limited geographic jurisdiction. Appeals are lodged in regional courts of appeals,with final criminal appellate authority residing in the national Cassation Court.

6. Id. § 18(2):In exercising its discretionary jurisdiction, the CCCI should concentrate itsresources on cases related to:

a) terrorism,b) organized crime,

VOL. 39:1

THE IRAQI CRIMINAL JUSTICE SYSTEM

substantive law from common-law systems on the new court. Instead, the CCCI isconfigured and runs in the same way as the regular provincial criminal courts inIraq. Each branch of the CCCI consists of an Investigative Court and a Felony(trial) Court. The Court implements Iraqi substantive and procedural criminal lawthe same as other courts.8 Appeals travel directly to the Court of Cassation.9 TheIraqi Criminal Procedure Code thus applies to all cases processed through theCCCI, from arrest and detention through investigation, trial, and punishment. 10

A. A Quick Comparison of Roles and Responsibilities

Regardless of the court in which the Code is being applied, it is important tounderstand a little about the players in order to understand the Code. Some writershave made the mistake of trying to compare a civil law trial-by-judge system withthe common law trial-by-jury system used in criminal trials in the United States.11

In the confines of an article such as this, to do any kind of satisfactory comparativeanalysis is impossible. However, by referencing the key benchmarks in bothjustice systems, it is easy enough to see that they both attempt to arrive at the samegoals-public punishment of criminal offenders-albeit from different cultural andhistorical perspectives.

In the United States criminal justice system, the prosecutor is a personage ofenormous power. The prosecutor is the one who reviews data collected by thepolice (and who, to some extent, directs the type of information and evidence to becollected), who decides whether the evidence is sufficient to go forward, whoformulates the nature and content of criminal charges, who controls the offer andacceptance of plea bargains, who decides the means and method by whichincriminating evidence will be presented to the fact finder, and, finally, whosecharisma and credibility are to some extent in play when lay peer juries areevaluating the sufficiency of the evidence. The prosecutor and police in ouraccusatorial system work together, often with considerable government resourcesat their disposal, to investigate allegations of criminal conduct. If they believe acrime has been committed, they then determine (i) who they believe should be heldto account for the crime, (ii) in what forum and with what charges the alleged

c) governmental corruption,d) acts intended to destabilize democratic institutions or processes,e) violence based on race, nationality, ethnicity or religion; andf) instances in which a criminal defendant may not able to obtain a fair trialin a local court.

7. Id.§ 1(2).8. Id. § 4:

The CCCI shall apply Iraqi law as modified by applicable CPA Orders and thisOrder.

9. Id. § 21:All appeals arising from CCCI proceedings shall be heard in accordance withapplicable Iraqi law as modified by CPA orders but the Court of Cassation shallhear all appeals from the Felony Court.

10. See id. § 18.11. See, e.g., Michael J. Frank, Trying Times: The Prosecution of Terrorists in the Central

Criminal Court oflraq, 18 FLA. J. INT'L L. 1, 21 (2006).

2010


offender should be charged, and (iii) the substance and means of presenting thefacts to a fact finder. 12 In this system, the judge's role is that of a gatekeeper, areferee who makes sure the charges are supported by reliable and relevantevidence. In the United States system, in which it is paradoxically almostimpossible for a lawyer to sit on a jury of peers, the fact-finding panel is givenonly superficial legal guidance on the legal definitions and presumptions relevantto the particular case it is considering. The purpose of this practice seems to be adesire to ensure that the members are focused solely on the facts as they relate tothe charge, rather than on any broad legal consequences of those facts.

In the Iraqi civil-law criminal justice system, the prosecutor and judgebasically switch roles. The Iraqi prosecutor is very much an administrative officialwhose job is to review the case file for completeness, and to providerecommendations to the judges as they try the case and deliberate their findings.The judges (first the investigative judge, then the trial judges) take center stage-literally-as they run the criminal investigation, issue arrest warrants, interviewwitnesses, determine appropriate charges, weigh the evidence, issue findings, andpass sentences. Whereas the United States criminal justice systems intentionallyseparate the pre-trial investigation (in which the judge is only tangentiallyinvolved) from the trial process, Iraqi courts consider fact gathering to be anintegral part of the judicial purview. Although there is obviously a role for some(even significant) data collection prior to the start of official criminal proceedings,the process-at least on paper-calls for the investigative judge (or his13 own dulyappointed judicial investigator) to repeat or confirm all critical facts in the case.While the prosecutor attends the trial (and even remains with the judges duringtheir deliberations), his role is largely administrative in nature.

To an Iraqi lawyer (and likely the average Iraqi citizen on the street as well),the idea that an untrained member of the public could or should be involved indetermining something so important as guilt or innocence in a criminal case ispreposterous. Trial judges are the best and brightest of the legal profession andhave significant training and experience prior to being appointed to the bench. Thejudges rightly consider themselves experts in knowing what the law says and, moreimportantly, what it means.14

12. Daniel S. Medwed, Emotionally Charged The Prosecutorial Charging Decision and theInnocence Revolution, 31 CARDOZO L. REv. 2187 (2010); Daniel Richman, Prosecutors and TheirAgents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749, 793-94 (2003).

13. The English translation of the Iraqi Criminal Procedure Code uses the masculine pronounthroughout, except as required for context; this article will do the same.

14. Although case verdicts, much less judicial explications of the same, are not formally recordedfor future reference in other unrelated cases, there actually is a system in place for checking poorjudicial performance. One of the roles of the Public Prosecutor is to ensure that the law is followed.They can report a judge if they believe the judge has acted inappropriately. Furthermore, the Ministerof Justice and appellate court presidents review the work product of and have disciplinary authorityover all investigative and trial judges. Judicial Organization, Law No. 160 of 1979 (Iraq), arts. 55-60,available at http://www.gjpi.org/wp-content/uploads/2009/01/jud org law.pdf; CPA Order No. 13, §5(2) (authorizing removal of judges only upon "clear evidence of unlawful or unethical conduct,breaches of the requirements of this Order, or incompetence on the part of the member.").

VOL. 39:1


It is a truism that the standard American lawyer answer to any legal questionis "it depends"-because a slight change in the facts can often lead to significantchanges in legal consequences. However, once all relevant facts have beendetermined, a lawyer can give a definitive answer based on the law as it stands atthat time. Of course, the well-entrenched principle of judicial review allowsAmerican courts to decide that one or another social (non-legal) considerationshould affect the outcome of the case.

Iraqi judges do not have such leeway. Their job is to apply the facts to theplain wording of the law. As such, the concept of following precedent ismeaningless because it is irrelevant: an Iraqi judge is commissioned to determinewhether the accused in a particular case violated the law vel non.15 Looking toother cases will not tell us whether this accused is guilty or not. To paraphraseGeneral David Petraeus' September 2007 interviews leading up to his testimonybefore Congress, the facts inform the law rather than drive it.16

This point is further driven home by the simple fact of the timing of theofficial charge. In the American court system, the accused is charged prior to trialproceedings. The entire focus of the prosecution case is directed toward thespecific wording of the charge. On many occasions, the defense case is builtaround trying to defeat one or more elements of the specific charge rather than tocompletely deny responsibility for any criminality. In the Iraqi system, althoughan accused is certainly aware of the type of criminal incident for which he is beinginvestigated, the official charge is almost anticlimactic as it comes at the end of thetrial. This one procedural change obviates an accused's ability to structure adefense argument built around hypertechnical attacks on the verbiage of the chargeand holding the government to what it thought it could prove. Instead, it puts thefocus of the entire proceeding on a determination of the facts and theirconsequence under the law. The Iraqi judges spend their time trying to determinewhat, if anything happened. Only after ascertaining the facts (with or withoutcounterargument by defense counsel 17) are the Iraqi judges in a position toformally charge the accused. In Iraq, no one gets off on a technicality.

15. I have no data to justify any discussion of judicial corruption where racial or religious biasesfactor into the judges' decisions.

16. Time to Head to Congress: Gen. Petraeus Preps for Much-Anticipated Iraq Progress Report,

ABC NEWS, Sept. 4, 2007, http://abcnews.go.com/WN/story?id=3556742&page=l. Gen. Petraeus saidthat troop fatigue issues would "inform" rather than "drive" his recommendations regarding troop cuts.Id.

17. Although all persons accused of felonies or misdemeanors are entitled to court-appointeddefense counsel, Article 19, § 11, Doustour Joumhouriat al-Iraq [The Constitution of the Republic ofIraq] of 2005 ("The court shall appoint a lawyer at the expense of the state for an accused of a felony ormisdemeanor who does not have a defense lawyer."), and an accused has a right to present a defense inall phases of investigation and trial, Id. at Article 19, § 4 ("The right to a defense shall be sacred andguaranteed in all phases of investigation and the trial."), the defense bar is still struggling to find itsvoice. See infra Section II.E.7. Defense counsel issues.

2010


B. The Players-Qualification, Training, Appointment, and Tenure

All players in the Iraqi criminal justice system are trained professionals.Although there appear to be no special training requirements for defense lawyers(whether appointed or retained), other than graduation from law school,18 Iraqi lawimposes specific requirements on all prosecutors and judges involved in theinvestigation and trial of accused criminals. 19

1. The Police

As with American society, the "face" of the criminal justice system that ismost familiar to the average Iraqi is the police officer. Civilian police officers-members of the Iraqi Police or the Iraqi National Police, both of which fall underthe Ministry of Interior (MOI)--patrol the streets, act as first responders, andconduct the initial (perfunctory) crime scene investigations. Together with theIraqi military, the police units were a major focus of intense rebuilding efforts andtraining efforts following the U.S.-led occupation in 2003, most notably from theCivilian Police Assistance Training Team (CPATT), a subdivision of Multi-National Security Transition Command-Iraq (MNSTC-I). 20 International police-training teams have been working closely with new recruits to accomplish the goalof a competent and corruption-free force. One of the primary training facilities forthe Iraqi Police is the Baghdad Police College located in Rusafa, a neighborhoodwedged along the east side of the Tigris River between Baghdad proper and SadrCity.

21

The original curriculum at the Police College was a three-year course of studycovering such diverse topics as the Penal Code, constitutional law, economics,languages (Kurdish, English, and Persian), first aid, fingerprinting and criminalphotography, weapons training, horsemanship, criminal sociology, Islamic law,and forensic medicine.22 Candidates for the Police College must be young,healthy, upstanding Iraqi citizens. 2

' As it turns out, the Police College is aninteresting cultural experiment in and of itself-bringing Shia and Sunni cadetstogether in an environment where they have to learn to rely on each other.

18. Law school in Iraq, as with the Police College, is a four-year post-secondary baccalaureate

program. There is no tuition expense for an individual's first undergraduate degree. Interview withZuhair A1-Maliki, former Chief Investigative Judge of the Central Criminal Court of Iraq (CCCI), in

Baghdad, Iraq (Aug. 6, 2007).

19. Judicial Institute, Law No. 33 of 1976 (Iraq), arts. 1, 8.20. MNSTC-I was a direct subordinate command of the Multi-National Corps-Iraq, which in turn

reported directly to Multi-National Forces-Iraq.21. OFF. OF THE SPECIAL INSPECTOR GEN. FOR IRAQ RECONSTRUCTION, REPORT No. PA-08-152,

ANBAR RULE OF LAW/JUDICIAL COMPLEX, RAMADI, IRAQ 2 (2009), available at http://www.sigir.mil/

files/assessments/PA-08-152.pdf.22. See Of the Police College, Revolutionary Command Council Regulation No. 1 of 1969, art.

18.23. The original regulation creating the modem Police College specified that recruits must be Iraqi

nationals whose father was Iraqi and whose mother was at least from an Arab country, high schoolgraduates, between sixteen and twenty-two years six months of age, at least 165 cm tall with a chestmeasuring at least 80 cm, able to pass a medical examination or physical fitness test, and "of goodconduct and reputation, not convicted on a felony or misdemeanor degrading the Honor." Id. art. 10.

VOL. 39:1


2. Judicial Investigators

In addition to police detectives and investigators, there are groups of "judicialinvestigators" who are lawyers working directly for the investigative judges. Theirduty is to investigate the crime scene in the absence of the investigative judge andto conduct any other inquiries directed by the investigative judge. 4

3. The Public Prosecutor and the Judges

With a few special exceptions, all prosecutors and judges are graduates of theJudicial Institute,25 a two-year specialized course designed to raise the "efficiency"of those who desire to enter the public judiciary.26 To be eligible for acceptance,

24. Criminal Procedure Code No. 23 of 1971 (Iraq), art. 51:A. The initial investigation shall be conducted by investigative judges or byjudicial investigators acting under the supervision of investigative judges.B. In case of necessity and if an investigative judge is not available an immediatedecision may be made or immediate action taken in the course of an investigationinto a felony or misdemeanor, provided that the officer responsible for theinvestigation lays the matter before any judge within the investigative judge'sarea of competence, or within all adjacent area, so that the judge may considerwhat action needs to be taken.C. Any judge may conduct an investigation into a felony or misdemeanor that hastaken place in his presence if an investigative judge is not available.D. The relevant documents in the cases specified in sub-paragraphs B and C shallbe submitted as quickly as possible to the investigative judge concerned and thedecisions and action provided for in those two paragraphs shall be subject to thedecision and action taken by the investigative judge.E. The judicial investigator shall be appointed by order from the Minister ofJustice, provided he possesses a recognized qualification in law or holds arecognized diploma from the legal department of the technical institutes. Policeofficers and sub-officers and legal officers of the Ministry of Justice may begranted the powers of a judicial investigator by order from the Minister ofJustice.F. No judicial investigator may perform the functions of his office for the firsttime unless he has passed a special course of the Judicial Institute of no less thanthree months if he obtained a recognized law degree or no less than a fullcalendar year if he holds a recognized diploma from the legal department of thetechnical institutes and he has sworn the following oath before the President ofthe Court of Appeal:'7 swear by Almighty God that I shall perform the functions of my office with

justice and shall apply the law faithfully."25. As an exception, a 2006 Amendment of the Law of Judicial Organization provided:

It is permitted to appoint the lawyer or the public employee who holds a bachelordegree in law as a judge by a presidential decree in exception from therequirement of being a graduate from the Judicial Institute provided that he hasspent at least ten years in the law profession or worked in the courts, and that heis not over fifty years of age.

The author has a copy of the text of the law, but no information regarding its number or date ofpublication in The Iraqi Gazette. Amendment to the Judicial Organization Law No. 160 of 1979, 2006(Iraq). The substance of the law was confirmed in a personal interview with Zuhair A1-Maliki, a formerChief Investigative Judge for the Central Criminal Court of Iraq (CCCI)--who personally benefittedfrom it because he himself not a graduate of the Judicial Institute. Interview with A1-Maliki, supra note18.

26. Judicial Institute, Law No. 33 of 1976 (Iraq), arts. 1, 8.

2010


one must obviously be a lawyer, and one must demonstrate a solid background andgood credentials.27

The actual application process for the Judicial Institute apparently involvesthree steps: a general written test in knowledge of the law, an oral exam in theform of an interview by a panel of five judges/prosecutors, and-mostimportantly-an "appearance" test, which is a separate interview by a panel of fivejudges/prosecutors to determine if the candidate looks, talks, and acts like a judge.An unwritten requirement, which can be a showstopper, is one's judicialpedigree-coming from the right family and having ties to the right influentialpeople.28

The curriculum at the Judicial Institute mirrors subjects covered in lawschool,29 but the courses are taught by experienced lawyers and former judges whodiscuss the practical application of the law.30 At the end of the first year of studies,the top students are placed in a judgeship track while the rest continue in a publicprosecutor track.31 Thus, lawyers identified as future judges and future prosecutorstrain side by side.

To be eligible for appointment as a judge in the courts of Iraq, one must beIraqi by birth, married, and a graduate of the Judicial Institute. 32 The original oathof office read as follows:

27. The Iraqi Judicial Institute Law spells out eligibility criteria, to include being Iraqi by birth,less than thirty-six years old upon matriculation, never implicated in a non-political crime involvingdishonor, of good conduct and reputation, physically fit, and a law school graduate. Later amendmentsrelaxed the age requirement to a range of twenty-eight to forty, Revolutionary Command CouncilResolution No. 665 of 1981 (Iraq), but, later amendments also added the requirement that theapplicant's parents both be Iraqi by birth, id, and that the applicant be married. First Amendment to theLaw of Judicial Institute No. 33 of 1976, Law No. 7 of 1980 (Iraq).

28. Interview with A1-Maliki, supra note 18.29. First year subjects include civil law, penal law, evidence, personal status law, civil procedure,

criminal procedure, Arabic, and French or English. Second year subjects are criminal investigation,forensic medicine, criminal psychology, and conflicts (for future judges) or comparative publicprosecution (for future prosecutors). Amendment to the Law of Judicial Institute No. 33 of 1976, LawNo. 18 of 1988 (Iraq), art. 5. Note that the study of evidence likely consists of studies related only toFor Evidence Law No. 107 of 1979 (Iraq), art. 11. This law specifically applies to civil, commercial,and personal status cases. Id. There is no law of evidence applicable to the criminal law.

30. Interview with A1-Maliki, supra note 18.31. Cf Judicial Institute Law No. 33 of 1976 (Iraq), art. 17 (specifying that graduates assuming

either a judgeship or an assistant prosecutor position must be "among those eligible" for each of the tworespective posts). Note that there appears to be no further specialization. Thus, all future judges takethe same course of studies, regardless of whether their future employment will be in the criminal courts,the administrative courts, the personal status courts, the juvenile courts, or the labor courts.

32. Judicial Organization Law No. 160 of 1979 (Iraq), arts. 36, § 1, available at http://www.gjpi.org/wp-content/uploads/2009/01/jud org law.pdf. The requirement, see supra note 27, that applicantsto the Judicial Institute not only be Iraqi by birth but born to parents who themselves were Iraqi bybirth, applies equally to judicial appointees. See Revolutionary Command Council Resolution No. 665of 1981 (Iraq). On the other hand, the requirement that judicial appointees be graduates of the JudicialInstitute is subject to the exception also noted above-i.e., that non-graduates may be appointed byPresidential decree. Amendment to the Judicial Organization Law No. 160 of 1979, 2006 (Iraq); seesupra note 25.

VOL. 39:1


I swear by god that I shall judge among people with justice and applythe Laws honestly with what comply with their goals in building theunited democratic socialist society. 33

Judges are eligible for promotion every five years.34 Their rise through theranks of four pay grades (from "Fourth Class" or "Grade D" up to "First Class" or"Grade A"35) determines, in addition to salary raises, their eligibility for specificpostings (from regional offices to the more exclusive positions in Baghdad, as wellas from investigative to trial judge). Thus, only the more senior members of thejudiciary are eligible for trial and appellate judgeships and other positions of

36importance. Judges may continue to serve until mandatory retirement at agesixty-three 37 unless removed involuntarily after receiving two poor performancereports while in the same grade or if deemed incompetent.38

Prosecutors are to be pillars of uprightness.39 More specifically, the role ofthe Public Prosecutor is to be a check on judicial overbearance and to ensurejustice throughout the criminal justice system. Thus, they are specifically taskedwith a wide and varied set of responsibilities:

* Review and opine on proposed judicial actions (1) transferring a case totrial, (2) ordering collection of body fluids, hair samples, or fingerprints,and (3) attaching property of a fugitive or accused;40

* Oversee cases originating by action of a criminal complainant; 41

* Inspect detention centers;42

* Review all death penalty cases before submission to the Court ofCassation; and43

* Attend investigative hearings as well as trials, cross-examine, and advisethe judges on the disposition of a case.44

The career path of prosecutors mirrors that of judges. Thus, as with judges, aprosecutor must be Iraqi by birth, married, and a graduate of the JudicialInstitute.45 They take a similar oath.46 They are eligible for promotion every five

33. Judicial Organization, art. 37, § 2.34. Id. art. 38.35. Id. art. 45.36. See id. arts. 30, 47, 48, 50, 54.37. Id. art. 42.38. Id. arts. 39, 58, 59.39. Public Prosecution Law No. 159 of 1979 (Iraq), art. 39.40. Id. art. 4.41. Id. art. 7, § 1.42. Id art. 7, § 2.43. Id. art. 28, § I(C).44. Amendment to the Law of Public Prosecution No. 159 of 1979, Law No. 15 of 1988 (Iraq),

art. 2.45. Public Prosecution Law, art. 41, para. 1. Since prosecutors, like judges, must be graduates of

the Judicial Institute, and since applicants to the Judicial Institute must not only be Iraqi by birth butborn to parents who were Iraqi by birth, it follows that prosecutors must be Iraqi born to Iraqi parents.See supra note 27. On the other hand, the exception allowing judges to be appointed who are not

2010


years.47 Furthermore, they, too, rise through four pay-grade levels, and their salarystructure appears to be identical to that of judges.48 Finally, they are subject tomandatory retirement with pension at age sixty-three.49

II. IRAQI CRIMINAL JUSTICE SYSTEM-THE PROCESS

Unlike the United States' criminal justice process, where informal fact-gathering in preparation for the formal (accusatorial) trial process is largely doneoutside the realm of the disinterested judicial branch of government, the Iraqi penalsystem-structured similarly to the Egyptian and continental civil law models-considers the investigatory, fact-gathering phase as the actual first step in itsformal (inquisitorial) trial process.50 Although there is obviously a role for some(even significant) data collection prior to the start of judicial involvement, theprocess-at least on paper-calls for the investigative judge (IJ) (or his own staff"judicial investigator") to repeat or confirm all critical facts in the case.

The remainder of this article will set out both the black-letter law from theIraqi Criminal Procedure Code and the way I observed it in practice-with thecaveat that my exposure to the process was meager at best and limited to smallportions of Baghdad.

A. The Initial Investigation

The initial investigation includes all government-led pre-trial actions taken inresponse to a discovery or report of a crime. Criminal cases in Iraq, as in theUnited States, begin either when the police arrest a suspect or when an individualpresses charges.51 A complaint can be instigated by an injured party, hisrepresentative, or a government official in the judicial system. Because crimesare essentially torts where the state sues on behalf of the victim (and society at

Judicial Institute graduates does not expressly apply to prosecutors. Amendment to the JudicialOrganization Law No. 160 of 1979, 2006 (Iraq); see supra note 25.

46. Public Prosecution Law at art. 42, para. 2:I swear by God to perform the works of my duty and apply the Laws with [sic]loyally and faithfully in conformity with its aims in Building the United SocialistDemocratic Society.

47. Id.art. 43, para. 1.48. Compare Public Prosecution Law, art. 43, with Judicial Organization Law No. 160 of 1979

(Iraq), art. 38.49. Public Prosecution Law, art. 57, para. 1.50. See CPA Order No. 13, §§ 1-2 (2004); Criminal Procedure Code No. 23 of 1971 (Iraq), art.

51.51. Criminal Procedure Code, art. I(A):

Criminal proceedings are initiated by means of an oral or written complaintsubmitted to an investigative judge, a [judicial] investigator, a policeman incharge of a police station, or any crime scene officer by an injured party, anyperson taking his place in law, or any person who knows that the crime has takenplace. In addition any one of those listed can notify the Public Prosecution unlessthe law says otherwise. In the event of a witnessed offence the complaint may besubmitted to whichever police officers or sub-officers are present.

52. An attorney in fact cannot prosecute a case on behalf of an estate. See id art. 9(D):If a person who had the right to submit the complaint dies, the right to submit thecase does not transfer to his heirs.

VOL. 39:1


large), the Iraqi system melds any private tort cause of action with the publicprosecution. The criminal complaint is thus not only a claim for criminal justiceand request that punitive action be taken against a perpetrator, but it includes theconcomitant civil action as well.53

Some complaints must be filed by the victim alone,54 but other individualscan provide information on a criminal case-such as eyewitnesses, 55 persons who

56 1encounter evidence of a crime, police officers,57 and certain professionals

53. Id. art. 9(A):The submission of the complaint should include the claim for criminal justicewhich is a petition that penal measures be taken against the perpetrator of theoffense and for the penalty to be imposed on him. The written complaintincludes the claim for civil justice as long as the complainant does not declareotherwise.

54. See id. art. I(A); see also supra note 51. The victim ("aggrieved party") or his representativemust personally file the complaint in cases involving such crimes as adultery, polygamy, defamation,divulging secrets, verbal assault (if the victim was not engaged in public service), theft, rape, breach oftrust, fraud, damage to or sabotage of private property, trespass, or throwing objects at vehicles,buildings, gardens, or compounds. Criminal Procedure Code, art. 3(A). Such complaint must be filedwithin 3 months (of the crime or notice thereof), absent compelling extenuating circumstances. Id. art.6. If there are multiple victims, only one need file the complaint. Id. art. 4(A). If there are multipleaccused, a complaint against one is a complaint against all-except in the case of adultery (wherecomplaints must be filed separately against both perpetrators, including one's spouse). Id. art. 4(B).

55. Criminal Procedure Code, art. I(B):An offense is considered to have been witnessed if it was witnessed whilst beingcommitted or a [sic] shortly afterwards or if the victim followed the perpetratorafterwards or if shouting crowds followed him afterwards or if the perpetratorwas found a short while later carrying the equipment or weapons or goods ordocuments or other things pointing to the fact that he was a perpetrator orparticipant in the offense or if traces or signs indicate this at the time.

56. Id. art. 47(1):Any person against whom an offense is committed and any person who learnsthat an offense has been committed in respect of which proceedings have beeninstituted without a complaint being submitted, or who learns that a suspiciousdeath has occurred, may inform the investigative judge or the [judicial]investigator or the Public Prosecution or any police station.

57. Id. art. 49:A. Any policeman in charge of a police station receiving information that afelony or misdemeanor has been committed shall immediately record theinformant's statement in writing and require the informant to append hissignature. He shall then send a report of the matter to the investigative judge or

[judicial] investigator. If the information he has received makes it clear that thefelony or misdemeanor took place in the presence of witnesses then he shall takethe action specified in Article 43.B. If the information he has received makes it clear that an infraction has beencommitted he shall send a summary report of the offense to the judicial]investigator or investigative judge. The report shall give the name of theinformant, the names of witnesses and the section of the law that applies to theincident.C. The policeman in charge of a police station must in every case enter in thestation logbook a summary of the information received concerning an offenseand the time at which the information was received.

2010


designated as mandatory reporters, including public servants and medicalprofessionals.58

Once a complaint has been filed or a case opened, it has a life of its own. Itcannot be withdrawn; nor can execution of the judgment be stopped59-- not even inthe event of the death of the complainant.60

In theory, the investigative process appears redundant. The Code identifies atleast three types of investigating officials-crime scene investigating officers,61

58. Id. art. 48:Any public servant who, in the course of performing his duties or as aconsequence of performing his duties, learns that an offence has been committedor suspects that an offence has been committed in respect of which proceedingshave been instituted without a complaint, and any person who has givenassistance in his capacity as a member of the medical profession in a case wherethere are grounds for suspecting that an offence may have been committed us[sic] well as any person who is present when a felony is committed mustimmediately inform one of the persons specified in Article 47.

59. Id. art. 2:The complaint may not be dropped, cancelled or withdrawn from nor can thejudgment issued on it be withdrawn from or not executed, except under thecircumstances explained in the law.

The exceptions seem to include the fact that the victim-complainant may withdraw from the complaint.Id. art. 9(C):

The person who submitted the complaint has the right to withdraw from it. If anumber of persons submitted the complaint and some of them withdraw, thisdoes not invalidate the rights of the others.

Withdrawal of one of several complainants does not affect the case. Id. art. 9(E):If there are many persons accused and the complaint against one of them iswithdrawn, this does not extend to the others, unless the law stipulates otherwise.

60. Id. art. 7:If the aggrieved party passes away after submitting the complaint, this death willhave no effect on the processing of the complaint.

Contrast this with the situation where a complainant in an existing case later dies. Id. art. 9(D):If a person who had the right to submit the complaint dies, the right to submit thecase does not transfer to his heirs.

61. Id. art. 39. "Crime scene officers" or investigating officers-not to be confused with thejudicial investigators working at the behest of the investigative judge-include, "according to theirareas of competence." Id.:

i. Police officers, police station commanders and sub-officers.ii. Mayors of villages and of urban neighborhoods-in respect of the notificationof offenses, the apprehension of suspects and the safe custody of persons whoshould be detained.iii. Railway stationmasters and their deputies, train guards/conductors, portmanagers/harbormasters, airport managers and captains of ships and aircraft andtheir deputies-in respect of offenses committed within their areas ofresponsibility.iv. Heads of government departments and official or semi-official establishmentsand agencies-in respect of offenses committed within their areas ofresponsibility.v. Public servants authorized to investigate offenses and take appropriate actionwithin the limits of the powers accorded to them by the relevant laws.

VOL. 39:1


judicial investigators (sometimes simply called "investigators"), 62 and theinvestigative judge (IJ) himself. Regardless of their organizational affiliation, theon-scene investigating officers, when acting in that capacity, report directly to thePublic Prosecutor's Office. 63 However, if they are derelict in their duties, theyanswer directly to the IJ.64 These first responders conduct an initial round of datacollection65 before reporting the matter to the IJ or the Public Prosecutor's Office. 66

The investigating officer's duty is to "go immediately" to the situs of thecrime and proceed to take statements (including from the alleged perpetrator),

62. Id. art. 51; see also supra note 24 and corresponding text, discussing judicial investigatorauthorities as defined in Article 51.

63. Criminal Procedure Code, art. 40(A):Each crime scene officer acts within the bounds of his area of competence, underthe supervision of the Public Prosecution and in accordance with the provisionsof the law.

64. Id. art. 40(B):Crime scene officers are subject to the control of the investigative judge, whomay request the superiors of such officers to look into any case where an officeracts in a manner inconsistent with his duties or is remiss or negligent in his workand to institute disciplinary proceedings against him, such proceedings beingwithout prejudice to the officer's liability to criminal proceedings should hecommit an act that constitutes an offense.

65. Id. art. 43:When a crime scene officer, within his area of competence as specified in Article39, is informed or becomes aware that an offense has been committed in thepresence of witnesses, he is required to notify the investigative judge and thePublic Prosecution of the occurrence of the offense, to go immediately to theplace where the offense occurred, to take down in writing a statement from thevictim of the offense, to orally question the person about the accusation madeagainst him, to impound any weapons and anything that may appear to him tohave been used in the commission of the offense, to examine and preserve anymaterial traces of the offense, to establish the status and whereabouts of thepersons involved and or [sic] anything else that may assist in investigating theoffense, to hear statements by any person who was present or that can obtained[sic] from other persons concerning the facts of the case or the perpetrator of theoffense and to cause a written record of all such information to be duly made.

66. See id. art. 46:The crime scene officer's task ends when the investigative judge, [judicial]investigator or representative of the Public Prosecution arrives, except in regardto any matter for which they assign responsibility to him;

see also id art. 50(A):As an exception to the first sub-paragraph of Article 49, the policeman in chargeof a police station shall conduct an investigation into any offense if he isinstructed to do so by an investigative judge of [sic] [judicial] investigator or ifhe considers that referring the informant to an investigative judge or Dudicial]investigator would delay necessary action and result in evidence of the offensebeing destroyed or lost, the course of the investigation being impaired or thesuspect fleeing, provided that the officer submits the documentary record of theinvestigation to the investigative judge or the [judicial] investigator as soon as hehas completed it;

id. art. 51(A):The initial investigation shall be conducted by investigative judges or by[judicial] investigators acting under the supervision of investigative judges.

2010


collect evidence, and make inquiries.67 They have authority to "forbid" themovement of witnesses/personnel at the scene and to issue summonses for theappearance of other necessary witnesses, but they apparently do not haveenforcement authority; 68 instead, they simply note any refusal to cooperate in theirofficial record of the case. 69 This investigation is preliminary to the officialinvestigation conducted by the IJ or the IJ's own judicial investigator: theinvestigating officers merely pass all information and evidence received (there areno specific chain-of-custody requirements70 ), including their own narrative reportof their investigative actions, to the court authorities as part of the case file.71

B. The Initial Investigation, Some Observations

Following the 2003 U.S.-led occupation of Iraq, and the subsequent violentbacklash from the various groups hostile to Coalition operations, the securitysituation worsened to the point that traditional police could not conduct criminalinvestigations as they had done previously during the relatively secureenvironment managed by the Saddam regime.7 2 Thus, for several years, thecivilian police-through lack of training and resources, were unable to performtheir regular crime-prevention and crime-investigation roles. This responsibilitythus fell to various Coalition groups who conducted patrols either on their own oras training missions for Iraqi forces. 73 Given the high level of violence, it simplywas not feasible, in most instances, for first responders to cordon off a crime sceneand collect forensic evidence-even if they had been so inclined. Furthermore,

67. Id. art. 41:Crime scene officers are authorized within their areas of competence to inquireinto offenses and to receive any statements and complaints that may be made inregard to these offenses. They are required to assist the investigative judge,[judicial] investigators, police officers and sub-officers, to pass on to them anyinformation concerning the offenses that may come into their possession, toapprehend those who committed the offenses and to deliver them to theappropriate authorities. They are also required to record all action taken inofficial reports signed by them, stating the time and place the action was taken,and to deliver immediately to the investigative judge all statements, complaints,reports and other documents and all impounded items and substances.

68. But see id. art. 45:The crime scene officer may request the assistance of the police if necessary.

69. Id. art. 44:When a crime scene officer goes to the place where a witnessed offense hasoccurred he may forbid those present to leave or move away from the scene ofthe offense until an official record has been made. He may also summonimmediately any other person who may be able to supply informationestablishing the facts of the case; if any person refuses such summons theinvestigating officer shall note the refusal in the official record.

70. See id. art. 42:Crime scene officers are required to use all possible means to preserve evidenceof an offense.

71. Id art. 41; see also supra note 67.72. See ROBERT M. PERITO, U.S. INST. PEACE, THE COALITION'S PROVISIONAL AUTHORITY'S

EXPERIENCE WITH PUBLIC SECURITY IN IRAQ, 3-5 (2005), available at http://www.usip.org/resources/coalition-provisional-authoritys-experience-public-security-iraq-essons-identified.

73. See id.

VOL. 39:1


during the heady days of the 2007 surge, most arrests were of terrorism suspects-many of whom were treated as security internees rather than as criminaldetainees. 7

C. Pretrial Investigation-The Initial Judicial Phase

Once the police or other investigating officer has concluded the initial fact-gathering phase and turned over all reports, statements, and evidence, theinvestigative judge takes over the case. The Code anticipates that the JJ'sinvestigation will occur in two phases. The first phase is an "initial" investigationof the crime scene and related environs71 in which the IJ travels about-evenoutside his geographical jurisdiction, if necessary-making arrests, conductingsearches, and collecting evidence.76 The second phase of the investigation is aformal hearing conducted in the IJ's offices.77

The purpose of the IJ's investigation is to create a dossier, which will be usedas the official record during the trial.78 In a very real sense, the IJ is thequintessential finder of fact because testimony at trial-if there is any at all 79 -is

often a formality, merely confirming the facts already established by the IJ. Assuch, this pretrial investigation may have more bearing on establishing the ultimatefate of the accused than does the trial itself.

In establishing the facts of the case, the IJ holds almost unlimited authority-over the scope of the inquiry, the format and substance of testimony, the witnesses,and even public access to the proceedings. Thus, for example, other than

74. See Criminal Procedures, CPA Memorandum No. 3 of 2003 (Iraq), § 7; see also infra note 109and corresponding text for more discussion about security internees.

75. Criminal Procedure Code, art. 52:A. The investigative judge shall conduct the investigation into all offences inperson or by means of [judicial] investigators. He may authorize any crime sceneofficer to carry out any particular action on his behalfB. The scene of the incident shall be examined by the [judicial] investigator orjudge so that he may take the action specified in Article 43, record the nature ofany material trace or evidence of the offence and of the injury sustained by thevictim, note the apparent cause of any death that has occurred and arrange for asketch-map of the scene of the incident to be made.C. If the investigative judge is notified of an offence that has occurred in thepresence of witnesses he must, whenever possible and without delay, go to thescene of the incident in order that he may take the action specified in sub-paragraph B and notify the Public Prosecution accordingly.

76. Id. art 56(A):The investigative judge may move to any other place within his area orjurisdiction to conduct any part of his investigation, if such a move is required inthe interest of the investigation, he may move to any place outside his area ofjurisdiction if the exigencies of the investigation so require. In this case he shallhave powers of apprehension, arrest and search, and authority to hear witnesses,to question suspects and persons connected with the incident under investigationand to release persons with or without bail, provided that he notifies theinvestigative judge of the district of the measures he has taken in that district.

77. See id. art. 57; see also infra note 80.78. See infra note 240 and corresponding text.79. See Criminal Procedure Code, art. 167; see also infra text accompanying note 300.

2010


individuals specifically authorized by the IJ to attend the hearing, only the accusedand the plaintiff (victim) are allowed in the room-and even they may be excludedby the IJ for good cause shown.80

The closed nature of the hearing obviously does not extend to necessary factwitnesses. In fact, although there is provision for collection and consideration of"hard" evidence, Iraqi criminal procedure writ large is clearly slanted in favor ofwitness testimony-and lots of it. In an interesting chicken-and-egg phenomenon,Iraqi praxis and the Code have both evolved to disfavor consideration of forensicor other non-testimonial evidence.81 It is true that the Code does provide forappointment of expert witnesses (who obviously work for the court, not for theprosecution or defense),8 2 and authorizes the IJ to collect 83 forensic evidence (fromboth accused and victim)8 4 and to conduct exhumations.85 However, the primacy

80. Criminal Procedure Code, art. 57:A. An accused person, a plaintiff, a civil plaintiff, a person responsible in civillaw for the actions of the accused and their representatives may attend theinvestigation while it is in progress. The judge or the [udicial] investigator mayprohibit their attending if the matter in hand so requires, for reasons that he shallenter in the record, with the proviso that they shall be granted access to theinvestigation as soon as the need to prohibit their attendance ceases and that theyshall not have the right to speak unless permitted to do so and that if permissionis withheld a note to that effect shall be entered in the record of the investigation.B. Any person who makes a request may receive a copy of the papers unless theinvestigative judge considers that to provide them would affect the course orconfidentiality of the investigation.C. No person other than those previously mentioned may attend the investigationunless the investigative judge gives permission.

81. See id. art. 61:A. Testimony is to be given orally but permission may be given for the witness torefer to written notes if the nature of the evidence so requires.B. Any person who is unable to speak may give his evidence in writing or inconventional sigh [sic] language if he is unable to write.C. If a witness does not understand the language in which the investigation isbeing conducted, or is deaf or dumb, a person must be appointed to translate whatthe witness says, or interpret the witness's sign language, after taking an oath thathe will translate or interpret truthfully and faithfully.

82. Id art. 69:A. The [investigative] judge or riudicial] investigator may, of his own accord orbased on the request of the parties, appoint one or more experts to offer opinionson matters connected to the offense being investigated.B. The investigative judge or [judicial] investigator may ask the expert to attendwhen called.C. The [investigative] judge may permit the wages of the expert be borne by thetreasury as long as the price is not unreasonably high.

83. See infra note 116 and accompanying text.84. Criminal Procedure Code, art. 70:

The investigative judge or [udicial] investigator may compel the plaintiff ordefendant in a felony or misdemeanour case to cooperate in physical examinationor the taking of photographs, or through fingerprinting or analysis of blood, hair,nails, or other items for the purposes of the investigation. Physical examinationof a female should be conducted by another female.

85. Id. art. 71:

VOL. 39:1


of testimony is firmly entrenched: the first order of business during the formalinvestigation is a thoroughgoing exposition of facts by the complainant andvictim.

8 6

So compelling is the preference for witness testimony that, while the rulesregarding physical evidence are minimal or hardly referenced in the Code, thedetails regarding calling of witnesses are extensive. Witnesses can be summonedto appear and testify under penalty of arrest for contempt.8 7 More importantly forthe accused, although there is a right against self-incrimination,8 the protection isnot without its limits (either in theory or in practice) given the significance laid onin-court confessions. 89 For example, spousal communications are the onlyrecognized category of privilege, but the privilege is not absolute. 90 All of-agewitnesses questioned during the hearing speak "on oath." 91 They must identify

The investigative judge may, if necessary, give permission for the exhumation ofa corpse by an expert or specialist doctor, in the presence of those with aconnection who are able to attend, in order to establish the cause or [sic] death.

86. Id. art. 58:An investigation is to commence with the recording in writing of the depositionof the plaintiff or informant, then of the testimony of the victim and otherprosecution witnesses and of anyone else whose evidence the parties wish to beheard, and also the testimony of any person who comes forward of his ownvolition to provide information, if such information will be of benefit to theinvestigation, and the testimony of any other persons who the investigative judgeor [judicial] investigator learns is in possession of information concerning theincident.

87. Id. art. 59:A. Witnesses are to be summoned by the investigative judge or [judicial]investigator to attend during the investigation by means of a writ of summonswhich will be served upon them by the Police or by an official of the departmentissuing the writ or by a village or district mayor or by any other personauthorized by law. Writs of summons addressed to persons employed ingovernment establishments or agencies or in official or semi-official departmentsmay be served on them by their departments.B. In the case of offences committed in the presence of witnesses the witnessesmay be summoned orally.C. An investigative judge may issue an order for the arrest of any witness whofails to attend in due time and for him to be compelled to attend in order to giveevidence.

88. Id. art. 126(B):The accused is not required to answer any of the questions he is asked;

see also infra Section II.E.8. Self-incrimination.89. See infra text accompanying note 114.90. Criminal Procedure Code, art. 68:

A. No married person shall be a witness against his or her spouse unless he or sheis accused of adultery or an offence against the spouse's person or properly [sic].B. One of the persons aforementioned may be a defense witness for the other andany part of his or her evidence leading to the conviction of the accused shall bedeemed to be invalid.

91. Id. art. 60(B)-(C):B. Each witness who has attained the age of fifteen years is to be required, beforehe gives evidence, to swear on [sic] oath that the evidence he will give shall bethe truth. Any person who has not attained the aforementioned age may be heard

2010


their relationship to the accused, the victim, and the complainant. 92 Pains are takento accommodate the live testimony of witnesses, to include the use of memoryaids, sign language, and translators.93 Each witness' statement must be reduced towriting and witnesses may be recalled to clarify previous testimony. 94 Thepreference for a live witness is so strong that the Code provides for payment ofwitness travel costs95 and instructs the IJ to travel to the witness' location ifnecessary to procure live testimony.96 On the other hand, once a witness is underexamination, the IJ controls the nature, substance, and delivery of all questions

for the purpose of evidential inquiry without being on [sic] oath.C. A complainant and a civil plaintiff may be heard as witnesses and may takethe oath.

92. Id. art. 60(A):Each witness is to be asked to state his full name, occupation, place of residence,relationship to the accused, to the victim, to the complainant and to the civilplaintiff.

93. Id. art. 61; see supra note 81.94. Id. art. 63:

A. Statements by a witness shall be entered in the record or the investigationwithout any erasures, crossings out, amendments or additions to the text, whichwhen complete shall be read through and signed by the witness, or if the witnesscannot read shall be read out to him and then signed by the person who entered itin the record. No correction or alteration shall be accepted unless signed both bythe investigative judge or [judicial] investigator and by the witness.B. The accused and the other parties may make observations on evidence givenand may ask for a witness to be questioned again, or for other witnesses to bequestioned about other facts to which they refer, unless the investigative judgeconsiders that a response to the request would be impossible or impracticable orwould delay the investigation unjustifiably or would pervert the course ofjustice.

95. Id. art. 66:If so requested by a witness the investigative judge shall assess the travelexpenses and other necessary expenditure incurred by the witness, as well as anywages he has been deprived of, as a result of his attendance away from hisnormal place of residence, and shall order their reimbursement from Treasuryfunds.

96. Id. art. 67:If the witness is ill or if there is anything else which prevents him from attendingthen the investigative judge or [judicial] investigator shall go to the witness'scurrent place of residence in order to receive and record his evidence.

VOL. 39:1


propounded to the witness.97 Furthermore, equal in importance to the substance ofthe witness' testimony 98 is the IJ's assessment of the witness' credibility. 99

Most interestingly, oral testimony is not presented seriatim in the type ofindividual-witness question-and-answer format used in American courts; rather,witness testimony is more conversational (albeit potentially confrontational).1 °°

The conversational nature of the testimony goes beyond a witness' ownobservations of fact-to include observations about other evidence and evenasking or suggesting that other witnesses be summoned. 10 1 The only real limits onwitness testimony are that (1) all questions must be vetted through the IJ, and (2) awitness' statement can be curtailed if it is irrelevant or offensive. 10 2

Throughout this process, an accused is, of course, entitled to representation bya retained or appointed defense attorney. 103 However, the Code does not identifyany specific role the defense bar is to play.

97. Id. art. 64:A. No question may be addressed to a witness without the permission of theinvestigative judge or Uudicial] investigator and no questions may be put to awitness that are not relevant to the case or which impinge upon others. A witnessmay not be addressed in a declaratory or insinuating manner and no sign orgesture may be directed at him that would tend to intimidate, confuse or distresshim.B. A witness may not be prevented from giving evidence that he wishes to giveand may not be interrupted while giving it, unless he speaks at undue length onmatters not relevant to the case or on matters that impinge on others, offendcommon decency or infringe security.

98. See infra text accompanying notes 113-115 (noting that the IJ actually writes the summary oftestimony, highlighting or downplaying facts as the IJ, in his sole discretion, deems appropriate).

99. Criminal Procedure Code, art. 65:The investigative judge or Uudicial] investigator must note in the record of theinvestigation anything he observes about a witness that may affect his fitness togive evidence or to sustain the process of giving evidence because of his age orphysical, mental or psychological condition.

100. Id. art. 62:The evidence of each witness shall be heard separately but witnesses mayconfront each other and the accused.

101. Id. art. 63(B):The accused and the other parties may make observations on evidence given andmay ask for a witness to be questioned again, or for other witnesses to bequestioned about other facts to which they refer, unless the investigative judgeconsiders that a response to the request would be impossible or impracticable orwould delay the investigation unjustifiably or would pervert the course ofjustice.

102. Id. art. 64; see also supra note 97.103. Id. art. 144:

A. The Head of the Court of Felony appoints a [sic] attorney for the accused infelonies if he has not appointed one and the court sets remuneration for thelawyer during judgment on the case. The decision to appoint the representative isconsidered an order of delegation. If the attorney can demonstrate a legal excusefor not accepting the brief, then it is for the head of the court to appoint analternative [sic] attorney.B. The appointed attorney must prepare the submission and defend the accused,or be replaced by an appointed attorney, with the court imposing a fine

2010


The IJ's role in the judicial process ends in one of three ways: he dismissesthe case with prejudice,1 0 4 he closes the case temporarily due to lack of evidence orbecause the perpetrator cannot be identified (or, interestingly, because the incidentwas an act of God),1 0 5 or he finds sufficient evidence that a crime has beencommitted and that this accused committed the crime-in which case he binds theaccused over for trial.10 6 The IJ prepares a formal dossier with summaries of allwitness testimony and the statement of the accused, as well as an executivesummary describing the relevant details of the case. 107

D. Pretrial Investigation-The Initial Judicial Phase, As Observed

Each opportunity I had to witness an Iraqi court proceeding 10 8 created lastingimpressions. First, was the indelicate ballet of shuffling prisoners-marched frombuses to holding cells, then to the IJ's chambers-dressed in sandals and brightly-colored jumpers. In the morning, there would be a line marching into the building,the continuity broken occasionally by an amputee hobbling in on crutches or beingcarried in by his fellow detainees. Their overseers orchestrated their movements at

implemented by a memo written by the head of the court to the department ofimplementation, without violating the procedural rules of the court, in accordancewith the Law of Lawyers. He shall be exempt from the fine if at any time it isproved that he was excused from attending the session in person or through arepresentative;

see also supra note 17; infra Section II.E.7. Defense counsel issues (discussing defensecounsel roles and issues).

104. Criminal Procedure Code, art. 130(A):If the investigative judge finds that the action is not punishable by law or that thecomplainant has withdrawn the complaint, or that the offence is one over whichhe has no authority without reference to the judge, or that the accused is notlegally responsible because he is a minor, he issues a decision rejecting the caseand closing the case file definitively.

105. Id. art. 130(B)-(C):B. If the act is punishable by law and the investigative judge finds that there issufficient evidence for a trial, a decision is issued to transfer the accused to theappropriate court. If there is insufficient evidence he is not transferred, an orderis issued for his release and the case file is closed temporarily, with a statementcontaining the reason for the closure.C. If the investigative judge finds that the perpetrator is unknown or that theincident was an act of God, he issues a decision to close the case temporarily.

106. Id. art. 130(B).107. Id. art. 131:

A decision of transfer should list the name of the accused, his age, profession,place of residence and the offence of which he is accused as well as the time anddate of its occurrence and the Article of law which applies, the name of thevictim and the evidence obtained, along with the date of issue of the decision,signed by the investigative judge and stamped by the court.

108. I readily admit that my personal observations may not be at all representative of the criminaljustice system as it occurs in the court systems that have been extant throughout Iraq since the originaladoption of the Criminal Procedure Code. The totality of my observations of investigative hearingsoccurred at the main (Al Karkh) branch of the Central Criminal Court of Iraq (CCCI), while all of myobservations of trial hearings were at the Rusafa Branch of the CCCI. The relevant players were Iraqis,but the forum was a Coalition creature. Nevertheless, I am confident that the process is not significantlydifferent elsewhere.

VOL. 39:1


every phase-first to the dusty holding cells, then to the internal hallways adjacentto the IJs' chambers to await the calling of their case. The courthouse almost hadan atmosphere of a crowded marketplace. When their case was called, they wouldbe ushered into the office. The IJ would sit at his large desk, which was situated insuch a way that it was obvious to all present that this was his show.

The Al Karkh facility processed all criminal cases investigated and presentedby Task Force 134, the Coalition unit tasked with processing persons captured byMNF-I forces. An initial review process determined whether the MNF-I detaineesshould be released to the Iraqi criminal justice process or held indefinitely asCoalition security internees-either because they were a potential source ofongoing actionable intelligence or because they were deemed a persistent threat,but there was insufficient releasable (unclassified) information to use against themin a criminal prosecution.109 Those released to Iraqi authorities were processed inthe new CCCI court system, with Iraqi judges applying Iraqi law.

The investigative hearing was an intimate setting. It was rare to have morethan seven or eight people in the room, including the IJ, his recorder (judicialinvestigator?), the accused, the prosecutor (usually played by a U.S. militarylawyer), a defense counsel, a translator or two for the U.S. military memberspresent, a few witnesses-usually U.S. military members who had arrested theindividual while on patrol-and maybe an observer or two (like me). Only on rareoccasions did the defense counsel say a word during the entire hearing. Whereasone (male) Iraqi witness might be considered sufficient to establish a case ready tomove forward (providing the accused confessed110 ), it was understood (maybeeven a policy) that Iraqi IUs would not accept the testimony of just one U.S.military witness in any case-no matter how many photographs, diagrams, or otherpieces of evidence there might be.

Task Force 134 apparently had a working relationship with the PublicProsecutor's Office at CCCI whereby military attorneys were deputized as"Special Prosecutors",1 although they were obviously not Prosecutors under Iraqilaw-not having been to the Judicial Institute nor falling under the Office of PublicProsecution. Although the Code does not really envision any participation by thePublic Prosecutor during the investigative phase, 1 2 the Prosecutor does,

109. Criminal Procedures, CPA Memorandum No. 3 of 2003 (Iraq), § 7, available athttp://www.ictj.org/static/MENAIraq/iraq.cpamemo3.062704.eng.pdf.

110. Criminal Procedure Code, art. 213(B):One testimony is not sufficient for a ruling if it is not corroborated bybackground information or other convincing evidence or an admission from theaccused. The exception to this rule is if the law specifies a particular way ofproving a case, which must be followed;

see also infra text accompanying notes 280-283.111. This assertion is made based on a variety of Task Force 134 documents in the possession of

the author.112. Criminal Procedure Code, arts. 40(A), 43, 46, 47(A), 84 (enumerating the duties of the Public

Prosecutor); see also Public Prosecution Law No. 159 of 1979 (Iraq); supra text accompanying notes39-44. The involvement of the Public Prosecutor's Office in any particular criminal case is fairlysuperficial until a formal trial is called. The Public Prosecutor is available as a sort of Inspector General

2010


nevertheless, have an institutional interest in monitoring developments in each caseto ensure compliance with law and procedure. It was my experience that themilitary attorneys' participation was limited to preparing military witnesses for thehearing and accommodating their presence. It was rare that the attorneys wereallowed to question a witness directly. Instead, depending on the indulgence of theIJ, they often had to request or suggest that the judge question the accused on acertain point to try to bring out some fact the attorney considered relevant. Thejudge might ask the question just as the attorney had suggested, he might reword it,or he might not ask it at all.

To me, the most striking aspect of the investigative hearing was that thedossier prepared and submitted by the IJ did not seem to contain any primaryevidence.113 Instead, the IJ would dictate a summary of each witness' testimony,as well as a review of all diagrams and photographs mentioned during the hearing.The IJ's recorder (perhaps his judicial investigator?) would sit at the comer of hisdesk and transcribe his dictation in longhand onto blank sheets of paper-making asimultaneous file copy by use of carbon paper slid between two sheets of paperheld by a binder clip (reportedly an Iraqi practice in all walks of life). It was thishandwritten dictation that became the case file forwarded to the trial court.

The Iraqi judiciary apparently has a saying that "the confession is the masterof evidence."' 114 The IJ's true power is most poignant in the surprisingly-largemajority of cases where there is a confession. On the one hand, confessions weretranscribed in the same quotidian way as the IJ's executive overview of the entirecase and other witness statements. On the other hand, it was in fact the IJ'sterminology, not the accused's, that was ultimately adopted as the confession. Iwitnessed more than one IJ dictate his version of the confession and even get insidebars-sometimes involving some amount of obvious disagreement-with theaccused over just how the facts should be portrayed. In the end, the accused wouldadopt the statement and affix to it his mark or signature.

The foregoing practice was in sharp contrast to the level of acceptance by theIJ and trial judges alike with respect to extrajudicial confessions. Even though theCoalition forces had an extensive training program to ensure that their policepatrols thoroughly documented the crime scene with photographs, diagrams, andtape recordings,11 5 the judges appear chary of accepting any confessions made tothe police/military agents who effected the arrest. The judges feel a strong need towitness the confession themselves (and perhaps to massage it in their ownverbiage). Accordingly, such out-of-court confessions typically hold little to noweight.

to ensure that the investigators and judges properly adhere to legal requirements. But see Amendmentto the Law of Public Prosecution No. 159 of 1979, Law No. 15 of 1988(Iraq), art. 2.; supra note 44 andaccompanying text (Public Prosecutor is entitled to attend investigative hearings).

113. See supra text accompanying notes 81-85.114. Interview with Al-Maliki, supra note 18.115. See Rita Boland, Battlefield Crime Scene Investigators Gather Evidence to Stop Terrorists,

SIGNAL, Nov. 2009, at 34, available at http://www.afcea.org/signal/articles/templates/SIGNAL_ArticleTemplate.asp?articleid=2104&zoneid=54.

VOL. 39:1


E. Special Issues Under the Code

The Iraqi Criminal Procedure Code addresses a variety of issues that are notpart of the investigation and trial process per se, but have significant bearing onthem.

1. Searches and Seizures116

The rules regarding searches of persons or places are not unlike AmericanFourth Amendment jurisprudence. 1 7 For example, although government officialslooking for evidence of a crime may not search a person or place without priorauthorization,1 1 8 the IJ's authority in ordering searches is quite broad.11 9

As in other areas of the law, the legal standard for the investigative judge ishazy: he simply must have reason (probable cause?) to believe that useful evidencewill be found which will shed light on the investigation. 120 If necessary, authorities

116. I was never in a position to witness a field investigation, so I cannot offer any observations ofwhether praxis differs from theory. I can say, however, that the investigative hearings and trials Iobserved did not seem to utilize any seized items as evidence-relying, instead, on witness statements,photographs, and pictures drawn by the witness at the scene. To my recollection, I never observed anydiscussion of an objection to any search or seizure.

117. See Article 17, Section 2, Doustour Joumhouriat al-Iraq [The Constitution of the Republic ofIraq] of 2005:

The sanctity of the homes shall be protected. Homes may not be entered,searched, or violated, except by a judicial decision in accordance with the law.

118. Criminal Procedure Code, art. 72(A):The searching or any person or entry of any house or any business premises forthe purposes of a search are not permitted other than in cases stipulated by law;

see also id art. 73(A):The searching of any person or entry of a house or other business premises forthe purpose of a search is not permitted unless based on an order issued by thecompetent legal authority.

119. See id. art. 70:The investigative judge or Dudicial] investigator may compel the plaintiff oraccused in a felony or misdemeanour case to cooperate in physical examinationor the taking of photographs, or through fingerprinting or analysis of blood, hair,nails, or other items for the purposes of the investigation. Physical examinationof a female should be conducted by another female.

120. Id. art. 74:If it appears to the investigative judge that a particular person is holding items orpapers which would inform the investigation, he may issue a written order for theitems to be submitted. If he believes that the order will not be obeyed or isworried that the items will be removed, he may conduct a search procedure inaccordance with the paragraphs below;

see also id art. 75:The investigative judge may order the searching of any person or house or anyother place owned by the person accused [of] committing an offence if the searchmay reveal the presence of documents, weapons, tools or persons who have had apart in the offence or are held against their will;

id. art. 76:If it appears to the investigative judge, based on information or an indication, thata residence or other place is being used to keep stolen money, or that it containsitems involved in an offence, a person who is being held against his will or aperson who has committed an offence, he may order the search of that location

2010


may use force to effectuate a search. 121 On the other hand, despite a seeming lackof standards regarding the level of suspicion required to justify a search, searchesare theoretically conducted under the aegis of an investigative judge. Thus,although there are no legal standards set forth in the Code, they are likelydiscussed both in law school and at the Judicial Institute. It should also be notedthat there is a panoply of rights reminiscent, and perhaps more protective, ofindividual concerns than in American jurisprudence:

* The police may not deviate from the scope of the authorization.1

* The search authorization requirement extends even to areasoutside the control of the accused-where an American suspectwould not have standing to contest the search. 123

* The default rule is that searches take place in the accused'spresence; furthermore, impartial witnesses observe the search tosafeguard against police impropriety. 124

* Notwithstanding the lack of a specific requirement to maintain a

and take legal measures in relation to the money or persons, whether or not thelocation is owned by the accused;

id. art. 77:The person undertaking the search may search any individual at the search site onthe basis that such individual may be hiding something for which the search isbeing conducted.

Note that Article 77 was not included in any of the original English translations of the CriminalProcedure Code. It is now extant in the GJPI version. See supra note 1.

121. Criminal Procedure Code, art. 81:The person to be searched, or whose property is to be searched, in accordancewith the law, must allow the persons searching to perform their duty. If heprevents the search, the person undertaking the search must carry it out throughthe use of force or may request police assistance.

122. Id. art. 78:A search is not permissible except when looking for the items to which the searchrelates. If the search reveals the existence of another item indicating an offense,it may be seized.

123. There must be an authorization to search not only the person or real property owned by anaccused, see Criminal Procedure Code, art. 75; see supra note 120 and accompanying text, but locationsnot owned by the defendant as well. See Criminal Procedure Code art. 76; see also supra note 120 andaccompanying text.

124. Criminal Procedure Code, art. 82:The search should take place in the presence of the accused and the owner of thehouse or place of business, if appropriate, and in the presence of 2 witnesses,along with the mayor or his appointee. The person conducting the search is toprepare a record in which are recorded the procedures and time of the searchalong with the location, items seized with descriptions, names of those present inthe location as well as a note of the accused and those connected with the caseand the names of witnesses. This record should be signed by the accused, theowner of the place, the person who carries out the search and those present. Anyrefusal to sign should be noted in the record. The accused should be given a copyor [sic] the record on request, as may those connected to the case, and copies ofletters or documents should be given to their owners, if that is not detrimental tothe investigation.

VOL. 39:1


chain-of-custody paper trail, 125 the Code has direct safeguardsagainst evidence tampering. 126

* Personal privacy considerations even extend to personaleffects. 127

* Female body searches must be conducted by other females.128

* Suspects may even raise objections during the course of thesearch

129

Iraqi law also recognizes some of the same types of exceptions to thewarrant/order requirement:

* Emergency circumstances entry130

* Plain view seizure 131

* Search incident to arrest132

125. See id. art. 42; see also supra note 70 and accompanying text.126. Id. art. 83:

The person carrying out the search must place seals on all locations and itemscontaining evidence needed for the investigation, which should be protected. It isnot permissible to break this seal except by order of the investigative judge and inthe presence of the accused and owner of the property and the person whochecked the goods. If one of them is unable to attend or send a delegate, it ispermissible to break the seal in his absence.

127. Id. art. 84:A. If, amongst the articles in the location being searched, there are letters,documents or other personal items, it is not permissible for anyone to read themother than the person conducting the search, the investigative judge, the [judicial]investigator and a representative of the Public Prosecutor.B. If the items seized are papers which have been sealed in any way, it is notpermissible for any person other than the investigative judge or the investigatorto open them and read them. This reading should take place in the presence ofthe accused and those connected with the location. If the papers have noconnection with the case, they should be returned to the owner and not madepublic.

128. Id. art. 80:If a female is to be searched, the search must be conducted by a female appointedfor the purpose, with the identity or [sic] the searcher being recorded in therecord;

see also id art. 70:Physical examination of a female should be conducted by another female.

129. Id. art. 86:Objections to the search procedures should be submitted to the investigativejudge who must make a quick decision.

130. Id. art. 73(B):It is permitted to search any location without prior permission in the event of arequest for assistance from a person inside the location, or in the case of fire,drowning or other similar case of necessity.

131. Id art. 78:If the search reveals the existence of another item indicating an offense, it may beseized.

132. Id. art. 79:

2010


* Exigent circumstances search 133

* Weapons pat-down13 4

Finally, it is worth noting that the Iraqi Penal Code, 135 the main source ofsubstantive criminal law in Iraq, makes it a crime for public officials to enter ahome to conduct a search without consent or proper authorization.136

2. Compulsory Appearance--the Summons137

At any time during the fact-gathering phase, the official may issue a summonsto any person with knowledge of the case. 3 8 The summons is prepared induplicate and signed by the process server and the recipient, with each receiving a

The [judicial] investigator or crime scene officer may search the person arrestedin cases in which the arrest is permitted by law. In the event of the deliberatecommission of a felony or misdemeanor [sic] which has been witnessed, he mayinspect the house of the accused, or any place in his possession, or seize persons,papers or items which inform the investigation if there is a strong indication oftheir presence.

133. Id. art. 85:Any person conducting a search outside the area of jurisdiction of the judge whoissued it, must, before the search is carried out, refer to the investigative judge ofthe area in which the place to be searched is located. In urgent cases he maycarry out the search immediately and then inform the investigative judge of thearea.

134. Id. art. 107:Anyone who arrests someone in accordance with the law must take from him anyweapons he is carrying and hand them over immediately to the person issuing thearrest warrant or to the nearest police station or to any member of the police.

135. Penal Code No. 111 of 1969 (Iraq), available athttp://law.case.edu/saddamtrial/documents/raqiPenalCode_1969.pdf The author is not aware of anEnglish translation of the Code being published in the English version of The Iraqi Gazette, but thisversion appears to be an official translation commissioned by the Iraqi Ministry of Justice.

136. Id. 326:Any public official or agent who, in the course of his official duty, enters thehouse of a person or any part thereof without the consent of that person or causesanother to enter the house in circumstances other than those in which the lawsanctions such entry or without due care to the procedures laid down for makingsuch entry is punishable by detention plus a fine or by one of those penalties.The same penalty applies to any public official or agent who carries out a searchof a person, house or location without the consent of the owner or causes anotherto carry out the search in circumstances other than those in which the lawsanctions such search or without due care to the procedures laid down for suchsearch.

137. As with searches and seizures, I had no opportunity to observe the summons process either inaction or being discussed during a judicial hearing.

138. Criminal Procedure Code, art. 87:The court, investigative judge, [judicial] investigator or policeman in charge of apolice station may issue a summons to the accused or to a witness or to anyoneconnected with the case. There should be two copies of the document on whichare recorded the person issuing the summons and the person summoned, alongwith their place of residence, the time and place of the requested attendance, thetype of offense being investigated, and the legal paragraph on which it is based.

VOL. 39:1


copy.139 In cases where the recipient refuses to sign or cannot sign (due toilliteracy?), a witness can sign the documents attesting to their delivery.1 40

Personal service of a summons is not required: if it is known that the witness is in-country, the summons may be served on a spouse, close relative, or coworker.1 41

In fact, if no one is available to accept service of process, the summons maysimply be affixed to the recipient's door, with the server and witnesses attesting tothe posting.1 42 If the witness is in-county but outside the jurisdiction of the officialissuing the summons, the server can send it to a process server who has jurisdictionin the witness' location.1 43 If the witness is outside Iraq, service is accomplishedby mail using the same procedures used in civil cases.1 " A witness who presentsto the investigative judge without being summoned must submit a written pledge toappear when requested.1 45 This places the individual under the same legalrequirement to appear as a person summoned. In consequence, failure to appear isa basis for the issuance of an arrest warrant. 14 6

139. Id.; see also id. art. 88:The person summoned notes the contents of the summons and signs the originaldocument with his signature or finger print. The other copy is handed to him andan indication is made on the original document that notification has been carriedout, which includes a statement of the time and date of notification. If the personsummoned will not accept the summons or is unable to sign, the person taskedwith notification must ensure that he is informed of the contents in the presenceor [sic] witnesses, and leave him the other copy, after noting this on both copies,followed by his signature and those of the witnesses.

140. Id. art. 88.141. Id. art. 89(A):

If the person summoned is not present in his home or place of work and it isfound that he is present in the country, the summons can be presented to hisspouse, other relatives or relatives by marriage living with him, a person workingfor him or an employee at his place of work, who should sign the original copyand pass him the copy. If he does not, or cannot, sign, the procedures given inArticle 88 above should be followed.

142. Id. art. 89(B):If the person tasked with notification does not find any of the persons mentionedabove, he pins a copy of the paper on the outer door of the residence or place ofwork, after signing in front of witnesses, explaining the steps taken on both thecopy and the original.

143. Id. art. 91:A summons to a person outside the geographical jurisdiction of the authorityissuing that summons is sent to a [sic] authority within the geographicaljurisdiction for notification in accordance with the rules stated above.

144. Id. art. 90:The notification of persons outside Iraq and of corporate bodies is done throughuse of a written summons in accordance with the procedures outlined in the Codefor Civil Procedures.

145. Id. art. 96:If a person who should have had a summons or arrest warrant issued against him,appears before the judge or [judicial] investigator, the judge must ask him for awritten pledge, with or without bail, saying that he will attend at the requiredtime. If he does not attend, and does not have a legal excuse, the judge mustissue an arrest warrant.

146. Id. art. 97:

2010


3. Arrest and Detention

The Iraqi Criminal Procedure Code, consistent with the overarching theme ofthe investigative judge leading the charge to determine whether and by whom acrime has been committed, envisions an orderly process where an arrest isauthorized by the investigative judge only once the investigation has progressedsufficiently to identify a suspect. In fact, the default position in the Code is thatarrests must be effectuated pursuant to a judge-issued warrant, 147 barring otherlegal authority.1 48 The warrant specifically identifies the suspect and the generalnature of the crime he is accused of committing. 49 Unlike summonses, which areissued for witnesses or petty criminals,50 arrest warrants are not limited by the

If the person does not attend after being summoned, without a legal excuse, or ifthere is a fear that he will abscond or influence the investigation, or if he does nothave a specific place of residence, the judge may issue a warrant for his arrest.

147. Id. art. 92:Arrest or apprehension of a person is permitted only in accordance with a warrantissued by a judge or court or in other cases as stipulated by the law.

148. See id. art. 102:A. Any person may arrest any other person accused of a felony or misdemeanorwithout an order from the authorities concerned, in any of the following cases:

i. If the offence was committed in front of witnesses.ii. If the person to be arrested has escaped after being arrested legally.iii. If he has been sentenced in his absence to a penalty restricting hisfreedom.

B. Any person may, without an order from the authorities concerned, arrest anyother found in a public place who is in a clear state of intoxication and confusionand has created trouble or has lost his reason;

see also id. art. 103:Any policeman or crime scene officer must arrest any of the following if theyencounter them:

i. Any person against whom an arrest warrant has been issued by thecompetent authorities;ii. Any person carrying arms, whether openly or concealed, violating theprovisions of law;iii. Any person thought, based on reasonable grounds, to have deliberatelycommitted a felony or misdemeanor and who has no particular place ofresidence;iv. Any person who impedes a member of the court or public official fromcarrying out his duty.

149. Id. art. 93:The arrest warrant should contain the full name of the accused, with his identitycard details and physical description if these are known, as well as his place ofresidence, his profession, and the type of offence to which the warrant relates, thelegal provision which applies and the date of the warrant. It should be signed andstamped by the court. In addition to the details given, the warrant should containan instruction to members of the police force to arrest the accused, by force if hewill not come voluntarily.

150. See id. art. 99:In the case of an offence punishable by a period of detention exceeding one year,the accused is called to attend by the issue of an arrest warrant against him,unless the judge sanctions the issue of a summons. However, the issuing of asummons for an offense punishable by death or life imprisonment is not

VOL. 39:1


judge's jurisdictional limits and thus are enforceable throughout the entirecountry.

151

Police or court officers have authority to make warrantless arrests under avariety of specified circumstances.152 Citizen's arrest is also authorized.153 Force(apparently including lethal force in cases where the alleged offense merits thedeath penalty) may be used to enter a place to accomplish an arrest or to subdue aperson being arrested. 5 4

The orderly process anticipated by the Code is that the accused is presented tothe investigative judge for initial questioning 5 5 within twenty-four hours ofarrest. 5 6 Following this interrogation, the judge determines whether the arrestee

permitted.151. Id. art. 94:

A. The arrest warrant is valid in all areas of Iraq and must be executed by anyoneto whom it is sent. It remains current until it has been executed or cancelled bythe party issuing it or by a higher authority with legal right to do so.B. The wanted person must be informed of the warrant which has been issued forhis arrest and be brought before the party who issued the warrant;

but see id art. 100:If the arrest warrant is to be executed outside the area of jurisdiction of the judgewho issued it, the person charged with its execution should present it to theappropriate judge in the area for permission to execute it, unless he believes thatthe opportunity to arrest the person will be missed;

see also id. art. 101:

A. If the arrest warrant is executed outside the jurisdiction of the judge whoissued it, and if there is no permission to release the accused by pledge or bail asstipulated in Article 95, the judge must detain him and send him under escort tothe judge who issued the warrant.B. If the bail put forward by the accused is not accepted, or if he is unable tomake the pledge as stipulated in Article 95, the judge must detain him and sendhim under escort to the judge who issued the warrant.

152. See id. art. 103; see supra note 148 and accompanying text.153. See id. art. 102; see supra note 148 and accompanying text.154. Id. art. 105:

Any person who is sent an order to arrest someone, and any person charged withmaking an arrest in a witnessed offence must pursue the accused in order to arrestthem, and if the presence of the accused is in doubt, or he hides somewhere,persons in that place should be asked to hand him over or to offer all possiblefacilities to enable his arrest. If this is not allowed, the person making the arrestmust enter this place or any place in which the accused has taken refuge, byforce, in order to arrest him;

see also id art. 108:If the accused resists arrest or tries to escape, the person arresting him inaccordance with the law may use reasonable force to enable him to carry out thearrest and to move him without allowing him to escape, provided that this doesnot lead to the death of anyone who has not committed an offense for which thedeath penalty or life imprisonment is prescribed.

155. For discussion of the right against self-incrimination, see infra Section II.E.8. Self-incrimination.

156. Criminal Procedure Code, art. 123(A):The investigative judge or [judicial] investigator must question the accusedwithin 24 hours of his attendance, after proving his identity and informing him of

2010


should be detained and for how long. The Code prescribes a range of pretrial-restraint time periods, depending on the punishment prescribed for the crime ofwhich the person is accused:

* Death penalty cases: the judge may order the accused to be heldindefinitely.

15 7

* Crimes punishable by up to three years detention, imprisonmentfor a term of years, or life imprisonment: the judge may ordersuccessive fifteen-day periods, but may release either on bail158

or on a written pledge to appear.159

* Crimes punishable by no more than three years of detention or afine: the judge must order the release of the accused unless "heconsiders" that such release will frustrate justice.1 60

* Persons accused of mere "infractions": no pretrial restraint maybe imposed unless the person is homeless. 61

Under all of the foregoing circumstances, detention should not exceed one-quarter of the maximum potential sentence, and in no case longer than six months;the criminal court must approve any detention beyond six months and may notapprove any detention longer than one-quarter of the maximum potentialsentence.162 Detention is meant to be a temporary status 63-i.e., a person is to be

the offence of which he is accused. His statements on this should be recorded,with a statement of evidence in his favour. The accused should be questionedagain if necessary to establish the truth.

157. See id. art. 109(B):If the person arrested is accused of an offence punishable by death the periodstipulated in sub-paragraph (A) may be extended for as long as necessary for theinvestigation to proceed until the investigative judge or criminal court issues adecision on the case on completion of the preliminary or judicial investigation orthe trial.

158. Bail issues regarding amounts, handling of funds, and seizure of personal property to satisfydebts to the court are set forth in Criminal Procedure Code, arts. 114-122.

159. Id. art. 109(A):If the person arrested is accused of an offence punishable by a period of detentionnot exceeding 3 years or by imprisonment for a term of years or lifeimprisonment, the judge may order that he be held for a period of no more [than]15 days on each occasion or order his release on a pledge with or without bailfrom a guarantor, and that he attend then requested if the judge rules that releaseof the accused will not lead to his escape and will not prejudice the investigation.

160. Id. art. 110(A):If the person arrested is accused of an offence punishable by a period of detentionof 3 years or less or by a fine, the judge must release him on a pledge with orwithout bail unless he considers that such a release will obstruct the investigationor lead to the accused absconding.

161. Id art. 110(B)If the person arrested is accused of an infraction, he may not be held unless hehas no particular place of residence.

162. Id art. 109(C):The total period of detention should not exceed one quarter of the maximumpermissible sentence for the offence with which the arrested person is charged

VOL. 39:1


held only so long as is necessary to conduct the investigation.1 64 If a detainee isexonerated, he is to be released immediately. 165

The foregoing plethora of specific provisions in the Iraqi Criminal ProcedureCode is bolstered by a variety of others elsewhere in Iraqi law. For example, thepost-Saddam Hussein Iraq Constitution provides a number of references tominimum standards regarding treatment of criminal suspects. Starting from theidealized concepts that human dignity is to be "protected," 1 66 that the accused ispresumed innocent until proved guilty,167 and that individuals have the right to betreated with justice in all judicial proceedings,1 68 the Constitution specificallyprohibits "unlawful detention."' 169 The Constitution also goes so far as to specifythat "no person may be kept in custody or investigated except according to ajudicial decision" 170 and that preliminary investigative documents must besubmitted to an IJ within twenty-four hours of "arrest"-this period beingextended at most only once for an additional twenty-four hours. 171 All persons

and should not, in any case, exceed 6 months. If it is necessary to increase theperiod of detention to more than 6 months, the judge must submit the case to theFelony Court to seek permission for an appropriate extension, which must notitself exceed one quarter of maximum permissible sentence, or he should orderhis release, with or without bail, under the terms of sub-paragraph (B).

163. But see Modifications of Penal Code Proceedings Law, CPA Order No. 31 of 2003 (Iraq), § 6:Notwithstanding the bail provisions contained in Paragraph 109 of the CriminalProceedings Law No. 23 of 1971 the reviewing judge may order a personsuspected of committing an offense punishable by life imprisonment to be heldwithout bail until trial.

164. Criminal Procedure Code, art. 111:The judge who issued the decision to detain the accused may decide to releasehim on a pledge, with or without bail, before the end of the period of detentionstipulated in sub-paragraph (B) of Article 109, and he may return him to theholding detention if necessary for the investigation.

165. Id. art. 130(D):An accused who has been detained will be released once the decision to reject thecase or to release him has been issued.

166. Article 37, Section 1(A), Doustour Joumhourait al-Iraq [The Constitution of the Republic ofIraq] of 2005:

The liberty and dignity of man shall be protected.167. Id. Article 19, Section 5:

The accused is innocent until proven guilty in a fair legal trial. The accused maynot be tried for the same crime for a second time after acquittal unless newevidence is produced.

168. Id Article 19, Section 6:Every person shall have the right to be treated with justice in judicial andadministrative proceedings.

169. Id Article 19, Section 12(A):Unlawful detention shall be prohibited.

170. Id. Article 37, Section 1(B):No person may be kept in custody or investigated except according to a judicialdecision.

171. Id. Article 19, § 13:The preliminary investigative documents shall be submitted to the competentjudge in a period not to exceed twenty-four hours from the time of the arrest of

2010


accused of felonies or misdemeanors have a constitutional right to court-appointeddefense counsel 172 and to present a defense in all phases of investigation andtrial. 173

The Iraqi Penal Code174 actually enumerates several crimes applicable togovernment officials who violate a suspect's rights regarding detention:

* It is a crime to arrest, detain, or imprison any person incircumstances other than those stipulated by law. 175

* It is a crime for detention facility and prison officials to acceptprisoners without a valid detention or imprisonment order. 176

* It is a crime to willfully fail to execute the duties of one'soffice

177 or to commit an act in breach of one's duties with intentto harm the welfare of an individual.178

* It is a crime to maltreat a private citizen, causing him to suffer aloss of esteem or dignity or to experience physical pain. 179

the accused, which may be extended only once and for the same period.172. Id. Article 19, § 11:

The court shall appoint a lawyer at the expense of the state for an accused of afelony or misdemeanor who does not have a defense lawyer.

173. Id. Article 19, Section 4:The right to a defense shall be sacred and guaranteed in all phases ofinvestigation and the trial.

174. Criminal Procedure Code No. 23 of 1971, art. 107; see supra note 134.175. Penal Code No. 111 of 1969 (Iraq), art. 322, available at

http://law.case.edu/saddamtrial/documents/IraqiPenalCode_1969.pdf:Any public official or agent who arrests, imprisons or detains a person incircumstances other than those stipulated by law is punishable by a term ofimprisonment not exceeding 7 years or by detention. The penalty will be a termof imprisonment not exceeding two years or detention if the offence is committedby a person wearing an official uniform to which he is not entitled or who uses afalse identity or makes use of a counterfeit order claiming it to have been issuedby an authority that is entitled to issue such orders.

176. Id. art. 324:Any public official or agent who is entrusted with the administration orsupervision of a centre, prison or other institution set aside for the discharging ofa penalty or precautionary measure and who admits a person without an order todo so from a competent authority or refrains from implementing an order issuedfor the release of such person or for his continued detention following the periodprescribed for his custody, detention or imprisonment is punishable by detention.

177. Id art. 330:Any public official or agent who unlawfully refrains from executing the duties ofhis office or wilfully [sic] fails to fulfil [sic] his duties in response to a request orinstruction or to mediation by another or for any unlawful reason is punishable bydetention.

178. Id. art. 331:Any public official or agent who wilfully [sic] commits an act in breach of theduties of his office or refrains from executing the affairs of that office with intentto harm the welfare of an individual or to benefit one person at the expense ofanother or at the expense of the state is punishable by detention plus a fine or byone of those penalties.

VOL. 39:1


In sum, legal authorities abound for ensuring that no individual is held longerthan appropriate. Unfortunately, as noted in the next section, a disconnect existsbetween black-letter law and reality.

4. Arrest and Detention, Some Observations 180

Arrest and detention truly deserve their own treatment as they literallybecame an issue of overwhelming importance. In 2007, my task force was created,in part, to try to address the issue of the large number of detainees-some four tofive thousand-being held at Rusafa Prison on the outskirts of Baghdad. Thisgroup was a mix of unfortunate souls: most were in pretrial detention and had beenthere for two or three years without having seen a judge. Some of them wereaccused of crimes whose maximum potential sentences were less than the timethey had spent in detention; some had actually been through the judicial processand were either acquitted or deemed releasable due to insufficient evidence. Theprison was literally bursting at its seams, and officials were scrambling to create apermanent tent city in the adjacent field to relieve the pressure.

A number of causes exist for the overcrowding problem: the religiousprejudices of judges who were ill-inclined to release an individual not of thejudge's own religious persuasion; the dismal state of security at courthouses, whichdirectly impacted the number of hours judges dared to work; and the successes ofthe Coalition-backed patrols, which apprehended accused terrorism suspects inlarge numbers. 181 However, perhaps the biggest culprit was the all-entrance, no-exit nature of the detention system: judges simply had no realistic incentive torelease prisoners. This, in turn, was a function of the process in which detaineesentered the system.

Most on-scene criminal investigations are conducted by Ministry of Interior(MOI) personnel-either Iraqi National Police, Iraqi Police, or investigators fromthe MOI Criminal Investigations Division (CID).182 Many police precincts, at least

179. Id. art. 332:Any public official or agent who cruelly treats a person in the course of his dutiesthereby causing him to suffer a loss of esteem or dignity or physical pain ispunishable by a period of detention not exceeding 1 year plus a fine notexceeding 100 dinars or by one of those penalties but without prejudice to anygreater penalty stipulated by law.

180. This paper will not address the collateral issue of security detainees-i.e., those persons seizedby coalition forces following the 2003 occupation of Iraq. A review process was created to determinewhether such individuals should be released to civilian authorities to be prosecuted for their crimesunder substantive Iraqi criminal law-including the provisions of the well-used Anti-Terrorism LawNo. 13 of 2005 (Iraq), promulgating a capital offense of "terrorist acts"-or whether they should beretained by coalition forces and held indefinitely without charge-either because they were deemed tobe a potential source of valuable intelligence or they were deemed a security risk but there wasinsufficient releasable (read unclassified) information to secure their conviction in an Iraqi tribunal. SeeCriminal Procedures, CPA Memorandum No. 3 of 2003 (Iraq), §§ 5-6 (providing specific substantiveand procedural rights for criminal detainees and MNF Security Internees).

181. Interview with Colonel Mazin and Captain Hayder, Officials with MOI RecordsDepartment,in Baghdad, Iraq (Oct. 2007- Nov. 2007).

182. Id.

2010


in Baghdad, have resident investigative judges (or close access to a judicialfacility) who can issue arrest warrants on short notice. MOI personnel thus bringthe individuals arrested into the system, and their case file is created at the locallevel. The MOI personnel eventually transfer them to a regional holding facilitybefore ultimately passing them to the custody of the Ministry of Justice (MOJ),which owns both the courts and the prisons. The case file, however, is transferredto one of the two main police General Directorates in Baghdad-al-Karkh and al-Rusafa

1 8 3

It appears that the MOJ apparatus does not have accurate copies of the MOIinformation. Thus, when the deadline for release comes up, no judge can make anaccurate assessment of whether the individual should be released because the casefile is incomplete.

The normal procedure should be for the investigative judge to issue a "straightrelease" (the individual is to be released immediately) or a "conditional release"(the individual is to be released if he is not otherwise wanted on criminalcharges). 18 4 However, the process of determining whether a person is otherwisewanted can take days, weeks, or even months.185 The prison officials (MOJemployees) query the police precinct (MOI employees) that made the originalarrest whether it has any other outstanding warrants on the same person. If thatprecinct has other warrants outstanding, it responds directly. If not, a process isinitiated to query all police precincts throughout the country. 18 6 The local policeprecinct forwards the request up through its regional police headquarters to theprovincial police headquarters, which sends it to a MOI central office with arequest to query neighboring provinces.187 An MOI official duly notes the requestand sends copies to the other provincial police headquarters, which in turn send therequest on down.188 Responses have to follow the same path up through MOI andback to the originating police precinct, before returning it to the (MOJ) prisonofficials.18 9 This time-intensive process has no real solution in the near term: evenif local police precincts had computers and electricity to run them, no centralizeddatabase exists where such information might be posted. Although there is, as Iwas told by an MOI official, a policy that all police units must send a letter to thePolice Affairs Division at MOI informing it of all arrests, there is no similarprocess for the issuance of arrest warrants. 190 Of course, the problem isexacerbated by inter-ministry rivalries: MOI employees have no incentive tomaintain a database of arrest warrants issued by investigative judges (MOJemployees).

183. Id.184. Id.185. Id.186. Id.187. Id.188. Id.189. Id.190. Id.

VOL. 39:1


Sadly, a data stream already exists that could be used to shorten this timelinesignificantly. All local precincts mail a report containing copies of all outstandingarrest warrants and their current detainees to MOI twice a month. 191 The officialswho receive the reports do not enter the information into any database or ledger.Instead, as I witnessed firsthand, they are permanently "archived" in various boxesstacked in closets or on top of shelving units at the MOI main headquarters.

Notwithstanding the maximum pretrial detention periods mandated in theCode, 192 government officials have no incentive to actually order release frompretrial confinement. Prison funding appears to be based on occupancy rates, sothe warden wants to retain as many individuals as possible. Judges do not want tobe known as having ordered the release of an individual later found to be guilty ora recidivist. Accordingly, the default is that "temporary" pretrial detention ordersare automatically renewed unless affirmatively overridden.1 93 Correlative to theforegoing, the granting of bail seems to be a rare phenomenon.

5. Habeas Corpus, Some Thoughts

The dismal track record regarding unjustified pretrial detentions indicates thatthe constitutional and codal rights discussed above are not self-executing. It alsoindicates that a habeas corpus right of action under Iraqi law does not exist.Because the IJ really "owns" the entire criminal justice process from initial arrestthrough referral to trial (he oversees all investigations and collection of evidence,he issues the arrest warrants, and he conducts the formal "discovery" process of theinvestigative hearing), he is theoretically empowered to dismiss charges or takeany other action necessary to ensure justice in an individual case. A habeas corpusproceeding is designed to compel the agency with control over a detainee to justifyto an impartial judge its basis for continued detention of the accused. However,becausethe IJs are both the agency and the judge, a habeas proceeding wouldessentially consist of the judge issuing himself a show cause order. Put that way,the absurdity of the situation is clear.

Is there, then, any remedy in cases where the arrest/detention warrant haslapsed? According to the attorneys who take cases as appointed defense counsel atthe Rusafa branch of the Central Criminal Court of Iraq, no remedy exists. Theyassert that if a complainant has filed a formal charge and a suspect has beenformally arrested (pursuant to a warrant issued by an IJ), the judge "has to give" anextension when the warrant expires.

6. Plea Bargaining, Some Thoughts

The concept of plea bargaining seems just as ill-fitting in the Iraqi system asdoes a habeas corpus claim. Because a case still has to be investigated prior totrial,19 4 an accused's in-court confession speeds the process along only ever soslightly. However, upon reflection, it would seem that a defendant could spend his

191. Id.192. Id.193. Id.194. See infra notes 235-36 and accompanying text.

2010


allotted testimony time introducing mitigating evidence in hopes of leniency insentencing. In the end, however, it seems that mitigation factors are something thejudges would adduce during the course of the investigation and trial. As such, theaccused's compliance may not be afforded any weight.

7. Defense Counsel Issues 195

The health of the Iraqi defense bar has been an issue of concern for sometime. Attorneys who support themselves as defense counsel are in an unenviabledilemma. They simply cannot afford to take work only as appointed defensecounsel because the fees for each case only amount to the equivalent of twenty toforty U.S. dollars. To make matters worse, the process of paying their voucherstakes at least a year. On the other hand, in the occasional cases where they areretained by a client, they can command fees of one thousand to four thousand U.S.dollars-but then they face animosity from the judges whose salary is significantlyless. They also face the very real possibility of retaliation from a complainant'sfamily-or from members of the general community-who assume that thosedefending suspects accused of terrorism are themselves aligned with terroristorganizations.

The attorneys readily admit that the low fees definitely impact theirmotivation in appointment cases, but they also admit they can have little impact ona case even when they are motivated. They blame their inability to impact a caseon the lack of motivation of salaried investigative judges who have no incentive toinvest effort in pursuing a missing case file.

8. Self-Incrimination

The Iraqi Penal Code 196 specifically prohibits the use of torture by officials toextract a confession. 197 In addition, the new Iraq Constitution prohibitspsychological and physical torture as well as inhumane treatment; it specificallyprovides that coerced confessions "shall not be relied on." 198 It also provides thatpersons made to confess under duress "shall have the right to seek compensationfor material and moral damages incurred in accordance with the law." 199 It is up toIraqi judges to ensure that these provisions are meaningful. It may precisely be thespirit of these provisions that gives rise to anecdotal evidence of judgesdiscrediting confessions that may have been coerced.

195. See supra note 17.196. Penal Code No. 111 of 1969 (Iraq), available at http://law.case.edu/saddamtrial/documents/

Iraqi Penal Code_1969.pdf; see also supra note 135.197. Id. art. 333:

Any public official or agent who tortures or orders the torture of an accused,witness or informant in order to compel him to confess to the commission of anoffense or to make a statement or provide information about such offence or towithhold information or to give a particular opinion in respect of it is punishableby imprisonment or by detention. Torture shall include the use of force ormenaces [sic].

198. Article 37, § 1(C), Doustour Joumhourait al-Iraq [The Constitution of the Republic of Iraq] of2005.

199. Id.

VOL. 39:1


By law, an accused is questioned shortly after arrest. 2°° Prior to questioning,the accused must be informed of, and understand, the right to remain silent and tohave an attorney provided at no expense.20 1 An accused's assertion of rights mustbe scrupulously honored,20 2 and the interrogation must otherwise be free ofcoercion. 20 3 The IJ or investigator then records the accused's statement20 4 (which

200. Criminal Procedure Code No. 23 of 1971 (Iraq), art. 123(A):The investigative judge or investigator must question the accused within 24 hoursof his attendance, after proving his identity and informing him of the offence ofwhich he is accused. His statements on this should be recorded, with a statementof evidence in his favour. The accused should be questioned again if necessaryto establish the truth.

201. Id. art. 123(B)-(C):B. Before questioning the accused the investigative judge must inform theaccused that:

i. he or she has the right to remain silent and no adverse inference may bedrawn from accused's decision to exercise that right;ii. he or she has the right to be represented by an attorney, and if he or she isnot able to afford representation, the Court will provide an attorney at noexpense to the accused.

C. The investigative judge or investigator must determine whether the accuseddesires to be represented by an attorney before questioning the accused. If theaccused desires an attorney, the investigative judge or investigator shall notquestion the accused until he or she has retained an attorney or until an attorneyhas been appointed by the court.

Note that subparagraphs (B) and (C) were added by Criminal Procedures, CPA Memorandum No. 3 of2003 (Iraq).

202. Criminal Procedure Code, art. 126(B):The accused is not required to answer any of the questions he is asked;

see also id. art. 123(C); supra note 201.203. Criminal Procedure Code, art. 127:

The use of any illegal method to influence the accused and extract an admissionis not permitted. Mistreatment, threats, injury, enticement, promises,psychological influence, or use of drugs or intoxicants are considered illegalmethods;

see also Article 37, Section 3, Doustour Joumhourait al-Iraq [The Constitution of the Republic of Iraq]of 2005:

All forms of psychological and physical torture and inhumane treatment areprohibited. Any confession made under force, threat, or torture shall not berelied on, and the victim shall have the right to seek compensation for materialand moral damages incurred in accordance with the law.

204. Criminal Procedure Code, art. 128:A. Statements of the accused are recorded in the written record by the[investigative] judge or investigator and signed by the accused and the[investigative] judge or investigator. If the accused is unable to sign, this shouldbe recorded on the written record.B. If the statement of the accused includes an admission to the commission of anoffence, the judge must record the statement himself, and read it back after aperiod of time. The judge and accused must then sign. If the accused would liketo write down his statement in his own hand, the judge must enable him to dothis, but it must be in the presence of the judge who must sign it, along with theaccused, and after recording this in the written report.

2010


is unsworn 20 5), including any exculpatory details or evidence adduced by theaccused that the judge deems to be admissible.0 6

At any time during the investigative hearing, the accused has the right tomake statements, to discuss the statements of other witnesses, and to request thatwitnesses be summoned.20 7

If an accused's statement implicates a co-defendant, the cases are severed, 208

presumably so that a co-defendant is not convicted based on the unsworn statementof his partner in crime. It appears that Iraqi law makes no provision for testimonialimmunity, but it does specifically allow the grant of transactional immunity: an IJcan, with permission of the trial court, immunize an accused in order to receivesworn testimony2°9 against a co-conspirator. 210 If the trial court ultimately acceptsthe witness' testimony as "full and true," his charges are released with prejudice.211

If the court doubts his testimony, he not only remains on the hook for his previouscharges, but his testimony is used against him-although (since the court believesthe statement to be a prevarication) the statement at that point is presumablyconsidered only for its value as a mendacity qualifier rather than for the truth of thematter asserted.212

205. Id. art. 126(A):The accused does not swear the oath unless acting as a witness for other accusedpersons.

206. Id. art. 128(C):Testimony which the accused asks to present in his defence should be recorded inthe written report along with investigation of other proof presented by him,unless the investigative judge decides not to grant the accused's request, becausehe believes it be an unjustified attempt to impede the investigation, or to misleadthe judge.

207. Id. art. 124:The accused has the right to make his statement at any time after listening to thestatements of any witness, and to discuss it or to request that he is summoned forthis purpose.

208. Id. art. 125:If it becomes clear that the accused is a witness against another accused, histestimony is recorded and the two cases are separated.

209. Id. art. 126(A); see supra note 205.210. Id. art. 129(A):

The investigative judge may offer immunity with the agreement of the FelonyCourt, for reasons recorded in the record, to any person accused of an offence, inorder to obtain his testimony against others involved in its commission, oncondition that the accused will give a full and true statement. If he accepts theoffer, his testimony is heard and he remains an accused person until a decision onthe case is issued.

211. Id. art. 129(C):If the Felony Court finds that the statement given by the accused who has beenoffered immunity is full and true, then it will halt permanently legal proceedingsagainst him and release him.

212. Id. art. 129(B):If the accused does not submit a full and true statement, whether throughdeliberate concealment of any important issue or through false statements, heloses his right to immunity by decree of the criminal court, and procedures are

VOL. 39:1


9. Hearsay

It appears that the court may accept extrajudicial statements made by awitness in another case if the court is convinced that it is impossible to procure thewitness to testify in the current case. 213 The same rule seems to apply toextrajudicial confessions.214

Despite the right to silence during the investigation phase,215 the trial "courtmay ask the defendant any questions considered appropriate to establish the truthbefore or after issuing a charge against him. 216 Furthermore, "[a] refusal toanswer will be considered as evidence against the defendant. 217 Any previousstatements given by the defendant will then be read and used against him.218 Infact, the court has "absolute [discretionary] authority" to accept or reject anystatements collected at any time throughout the investigative and hearing

219process.

taken against him for the offense for which he was offered immunity or any otherrelated offense. His statements are used as evidence against him.

213. Id. art. 217(A):The court has absolute authority in evaluating the accused's admission and actingupon it whether it was given in front of the court, in front of the investigativejudge, during other court hearing of the same case or in another case, even if thewitness subsequently withdraws his statement. The court can accept hisconfession to the [judicial] investigator if there is enough evidence to convince itthat the investigator did not have sufficient time to present the accused to the[investigative] judge so that his confession could be recorded.

214. Id. art. 217(B):Admissions may not accepted be [sic] if the conditions stipulated in A are notpresent.

215. Id. art. 126(B):The accused is not required to answer any of the questions he is asked.

216. Id. art. 179:The court may ask the accused any questions considered appropriate to establishthe truth before or after issuing a charge against him.

217. Id. The extensively-annotated version of the Criminal Procedure Code on the Global JusticeProject: Iraq, supra note 1, discusses-in the introductory notes and again in a footnote to CPC Article179-a botched attempt by the Coalition Provisional Authority (CPA) to delete the second sentence ofCPC Article 179, adding that, regardless of the validity of the deletion, the sentence should be correctlyrendered in English as: "A refusal to answer will NOT be considered as evidence against thedefendant." Criminal Procedure Code, art. 179, n.63. It is impossible to know how well the niceties ofthis discussion are known to most Iraqi judges.

218. Id. art. 180:If the accused refuses to answer questions directed to him or if his answers arecontradictory or contradict his previous statements, the court may order thereading and hearing of the accused's earlier answers and statements.

219. Id. art. 215:The court has absolute authority in evaluating the testimony. It can either fullyaccept it or reject it, accept the statements given by the witness during the policeinvestigation or during reports from the initial [judicial] investigation or given infront of another court in the same case, or completely reject the witness'statements.

2010


10. Evidence

As noted above, no body of black-letter law exists covering limitations oncollection and consideration of evidence in Iraqi criminal jurisprudence 0.22 Aboutthe closest the Code comes to discussing evidence is its tangential reference tochain of custody221 and a provision stating that the court may consider anystatement made by a victim under threat of death.222

11. Insanity

If it appears that an accused is mentally incapable of preparing his owndefense, a medical committee conducts a mental health examination on him.223

The court places the case on hold and he is institutionalized.224 If the courtauthorizes bail, it may release the accused to his relatives on the condition that theycommit to procure appropriate mental health treatment.225 If the medicalcommittee determines that he was not criminally responsible due to mental illnessat the time of the action under review, the court enters a finding of "diminishedresponsibility" and the accused is released to his family-on the condition that hewill undergo appropriate treatment. 226

220. See supra note 29.221. Criminal Procedure Code, art. 42:

Crime scene officers are required to use all possible means to preserve evidenceof an offence.

222. Id. art. 216:The court may accept the statement of a dying victim as evidence relating to theoffence and its perpetrator or any other related matter.

223. Id. art. 230:If it appears during an investigation or proceedings, that the accused is not able toconduct his own defence on the grounds of mental illness, or if the situationrequires an examination of his mental faculties in order to test his criminalresponsibility, the investigation or court proceedings are suspended, by decisionof the investigative judge, or court, and, if he has been charged with an offencefor which he cannot be released on bail, he is placed under supervision in agovernment health institution, capable of treating mental illness. For otheroffences, however, he is placed in a government, or non-government healthinstitution, at his expense on the request of whoever is acting on his behalf inlaw, or at the expense of his family, on payment of a surety by a guarantor. Aspecialist government medical committee is charged with carrying out anexamination and presenting a report on the state of his mental health.

224. Id.225. Id. art. 231:

If it appears from the report of the committee referred to in Article 230 that theaccused is not able to present his own defence, the investigation is postponeduntil he has sufficient mental awareness to make his own defence, and he isplaced under the supervision of a government health institution if he is accused ofan offense for which he cannot be released on bail. But in the case of otheroffenses, he can be handed over to one his relatives on a surety from a guarantor,on condition that a commitment is made that he should receive treatment in Iraq,or elsewhere.

226. Id. art. 232:If it appears from the decision of the medical committee that the accused was notcriminally responsible owing to mental illness at the time the offence was

VOL. 39:1


F. The Trial

Iraqi penal courts-as opposed to the investigative courts-are divided bysubject matter jurisdiction between the Court of Misdemeanor, the Court ofFelony, and the Court of Cassation.227 The Central Criminal Court of Iraq, by theterms of its incorporation, is a hybrid forum with jurisdiction over both feloniesand misdemeanors.228

As a case wends its way from the investigative court to the trial court, the caseand the status of the individual go through a variety of simultaneous transitions.For example, some available translations of the Code, without explanation, changethe nomenclature of the individual from accused to defendant. 229 The nature of thecase also seems to begin to solidify: whereas an investigation may have coveredmultiple accused and multiple crimes, the Iraqi penal system favors separate trialsof the same accused for separate crimes;230 joinder of criminal charges only occurs

committed, the judge will decide diminished responsibility and the court willissue a judgment of diminished responsibility and will take whatever action isnecessary for handing him over to one of his relatives, on payment of aguarantee, to undergo whatever treatment is necessary.

227. Id. art. 137(A):Penal courts are the Court of Misdemeanor, Court of Felony and Court ofCassation. These courts have jurisdiction to consider all criminal cases with afew special exceptions.

The Court of Cassation is an appellate court with "jurisdiction to review provisions and rulings issuedon felonies, misdemeanors, and other cases stipulated by law." Id art. 138(C):

The Court of Cassation has jurisdiction to review provisions and rulings issuedon felonies, misdemeanors and other cases stipulated by law.

It also reviews all death sentences. Id. art. 254(A):If the Criminal Court has issued a sentence of death or life imprisonment, it mustsend a file on the case to the Court of Cassation within ten days of the issue ofthe judgment, so that it can be reviewed for cassation, even if an appeal has notbeen lodged;

see also id. art. 224(D):If the court issues a death sentence, it must explain to the person given thesentence that his case papers will be sent automatically to the Court of Cassationfor review. He may also appeal against the ruling at the Court of Cassationwithin 30 days, starting from the day after the ruling has been issued.

228. CPA Order No. 13, § 18 (The CCCI has "nationwide discretionary investigative and trialjurisdiction over any and all criminal violations," but is commissioned to specifically focus on casesinvolving terrorism, organized crime, government corruption, acts against democratic institutions, hatecrimes (violence based on race, nationality, ethnicity, or religion), and cases where individuals wouldnot be able to get a fair trial in a local court.); see also supra text accompanying notes 4-9.

229. This is the case with the version posted on the Grotian Moment Blog; the GJPI versioncontinues to use the term "accused." See supra note 1.

230. Criminal Procedure Code, art. 188:A. One charge is made for each offence ascribed to a particular individual.B. One charge is made for multiple offences as stipulated in sub-paragraph132(A).C. One charge is made for each connected offence as stipulated in sub-paragraph132(B).D. It is permissible to make one charge against all the perpetrators of oneoffence.

2010


where the offenses are closely related-as a single string of events, as arising froma single common purpose, or as similar offenses against multiple victims. 231

However, several defendants' cases will be consolidated if they involve a singlecrime.232 Furthermore, just as an accused can be tried in absentia,233 an absentdefendant's case is not severed when there are multiple accused for a single

234crime.

Still, every defendant has an inviolable (perhaps unwaivable) right to aninvestigation on all crimes with which he will ultimately be charged235 -even for

E. There will be a trial for each charge.F. The trial will take place as if for a single case under the circumstancesstipulated in Articles 132 and 133.

231. Id art. 132(A):If several offenses are attributed to the accused, a single case is brought againsthim in the following circumstances:

i. If the offences resulted from one action;ii. If the offences resulted from actions linked to each other and for acommon purpose;iii. If the offences are of the same type and are committed by the samedefendant against the same victim, even if they occur at different times;iv. If the offences are of the same type and occurred within one year againstdifferent victims, on the condition that there are no more than 3 victims foreach case.

232. Id. art. 133; a single case is brought as stipulated in Article 132 if there are several accused,whether as principals or accessories.

233. Id. art. 135:If the accused does not appear before the investigative judge or [judicial]investigator, and is not arrested despite the use of methods of compulsion asstipulated in this law, or if he escapes after arrest or detention, and if there issufficient evidence for a transfer to court, the investigative judge issues adecision of transfer to the court responsible in order for a trial to be conducted hisabsence.

Procedures related to appeal of in absentia guilty verdicts are set forth in Criminal Procedure Code,arts. 243-48. Notice of the outcome of the case, and issuance of arrest warrants are in CriminalProcedure Code, art. 149:

A. The trial of an absent accused or one who has absconded is conductedaccording to the guidelines for the conduct of trials where the accused is present.B. Notification of the in absentia judgement is given to the person against whomthe judgement has been made. If the accused has absconded at the time ofnotification, notification is given as stipulated in Article 143.C. The court issues an arrest warrant against the person who has been sentencedin absentia to a penalty restricting his freedom, for a felony or misdemeanour;

see also id. art. 151:In the case of an accused who absconds after presenting his defence but beforethe issue or [sic] a verdict, without informing the court of any legal excuse, anarrest warrant is issued, requiring him to attend for delivery of the verdict.

234. Id. art. 148:If there are a number of accused and amongst them is one who has absconded oris absent, the trial of those who are present takes place, as does the trial of thoseabsent, but the case of those who are present takes precedence over the case ofthose who are absent.

235. On the timing of the official charge, see infra Section II.F.I. The Formal Charge.

VOL. 39:1


felonies committed in open court.236 Thus, if evidence comes to light implicating asuspect who is not before the court, the case subjudice may be suspended pendingan investigative hearing as to the newly accused, or the single defendant who hasalready been before an investigative judge may be tried on his or her ownaccord.237

Criminal trials in Iraq, as in other civil law jurisdictions, are meant to besuccinct.23 The business rules for the entire hearing are laid out in one shortarticle of the Code:

The trial begins with the summoning of the defendant and other partiesand the formal identification of the defendant. A decree of transfer isthen issued. The court hears the testimony of the complainant and thestatements of the civil plaintiff, then sees the evidence and orders thereading of the reports, investigations and other documents. Thestatements of the defendants are then heard, along with the petitions ofthe complainants, civil plaintiff, civil prosecutor and publicprosecutor.239

When a trial court receives a case dossier from an IJ, it sets a trial date andnotifies the defendant and all relevant witnesses and parties.240 If the accusedcannot be found, public notice is provided and he may be tried in absentia.241

236. Criminal Procedure Code, art. 159:A. If a person commits a misdemeanor or infraction whilst in the court room, thecourt may evaluate the case against him at the time, suspending the initial caseand making a ruling after listening to statements from a representative of thePublic Prosecutor, if present, and statements in defense of the person mentioned,or transferring him to an investigative judge after making a written record of theincident.B. If a felony is committed, the court makes a written record of the event andtransfers the accused to an investigative judge for the necessary legal steps to betaken.

237. Id. art. 155:A. It is not permissible to try any accused who has not been referred to the court.B. If it becomes clear to the court before judgment on a case is made, that thereare other persons linked to the offence, either as principals or as accessories, andprocedures have not been taken against them, it may consider the case withregard to the accused present, and request that the investigative authorities takelegal proceedings against the other persons or decide to suspend the case until theinvestigation has been completed.

238. I have not heard of any trial lasting longer than an hour. Most take less than half that time.239. Id. art. 167.240. Id. art. 143(A):

The court, on receipt of the case file, must set a date for the trial and inform thePublic Prosecution, the accused and those with any connection and any of thewitnesses who are to testify, by means of a written summons, at least one daybefore the trial in the case of an infraction, three days before for a misdemeanourand 8 days before for a felony. Informing the accused's attorney of the order toattend does not dispense with the need to inform the accused.

241. Id. art. 143(C):If it becomes clear, once the notification has been issued, that the accused has

2010


As in the investigative hearing, all live witnesses attend the hearing together.They testify under oath,242 but, as in the investigative hearing, they providespontaneous statements rather than simply responding to interrogatories. Thejudges, the prosecutor, the defense counsel, the complainant-even otherwitnesses-may then ask questions to clarify the witness' testimony. 243 There isno verbatim transcript of court proceedings, so the entire hearing looks more like"Question Time" in Parliament than a deposition244-including the fact that thedefendant is standing in a dock at the center of the courtroom rather than sitting ata defense table or on a witness stand to the side of the judges' bench.245

Any individual with relevant information 246 to provide on the case at hand247may come forward or be summoned as a trial witness. Purposely withholding

information from the court is grounds for a contempt finding.248

absconded, a summons or arrest warrant is pinned up at his place of residence ifknown, published in two local newspapers and announced on the radio ortelevision in the case of significant felonies or misdemeanours, in accordancewith a decision by the court. An appointment is set for the trial within a period ofno less than one month from the last date of publication in the newspaper for amisdemeanour or an infraction and two months for felonies;

see also id. art. 147(A):The trial will take place when the two parties attend. If the accused hasabsconded or is absent without legal excuse, despite his having been informed, atrial will take place in his absence.

242. Id art. 168(A):Before giving testimony each witness is asked to give his full name, profession,age, place of work and relationship to the parties. Before giving his testimony,he must swear that he will speak the truth and nothing but the truth.

243. Id art. 168(B)-(C):B. The witness gives his testimony orally and he may not be interrupted duringits delivery. If he is unable to speak due to disability, the court will give himpermission to write his statement. The court may ask any questions necessary inorder to clarify the facts after completion of the testimony. The PublicProsecution, complainant, civilian plaintiff, a civil official and the accused maydiscuss the testimony and ask questions and request clarifications to establish thefacts.C. It is permissible to remove the witness whilst the testimony of another witnessis being heard and the witness may be confronted by another witness during thetestimony.

244. See id. art. 175:The court may, either on its own or at the request of the parties, requestdiscussion of a testimony or return to its discussion and seek clarification of whatthe witness has said in order to establish the facts.

245. This is a personal observation of various courtrooms in Baghdad.246. Id. art. 169:

The testimony should be based on the facts which the witness is able to recallthrough one of his senses;

but see id art. 214:The court must decide that the witness is not fit to give testimony if it becomesclear he is unable to remember details of the event or that he is not fully aware ofthe of value of the testimony he is giving due to his age or his physical orpsychological state.

247. Id. art. 171:

VOL. 39:1


In the event a witness is unable or unwilling to testify, the court may useprevious testimony to bolster, supplement, or constitute witness testimony.249 Thecourt may dispatch a judge or other representative of the court to take thetestimony of a witness unable to attend the trial, in which case the parties or theirrepresentatives may attend and participate in the taking of the testimony.

The court may hear the testimony of anyone who attends the trial and anyonewho puts himself forward with information. It may summon any person to attendto deliver his testimony if it is considered that this testimony will help establishthe truth;

see also id. art. 174:A. If the witness does not attend, the court may, despite his prior notification,permit that he be re-summoned to attend or it may issue an arrest warrant againsthim for attendance to deliver the testimony and the witness may be given apenalty as prescribed by law for not attending.B. If the witness attends the court before the trial has been completed and itbecomes clear that he has an acceptable excuse for being late, the court mayretract the judgement issued against him.

248. Id art. 176:If the witness refuses to swear the oath or give testimony, other than in caseswhere this is permissible by law, the court may issue a sentence against him asprescribed by law for refusal to testify and may order the reading of his previousstatement which should then be treated as a testimony which was given in frontof the court.

249. Id art. 170:The court may order that testimony, previously given in the written reportcollating the evidence or during the initial investigation or before it or anyanother criminal court, be heard in front of it, if the witness claims not to recallall or some of the facts to which he testified, or if the previous statement clarifieshis current statement before the court. The court and other parties may discuss allof this;

see also id art. 172:If the witness does not appear or if his testimony cannot be heard because he hasdied, is unable to speak or is no longer qualified to testify or because hiswhereabouts are unknown or if his appearance before the court would causedelay or exorbitant expense, the court may decide to hear testimony previouslygiven in the written record of the collection of evidence or during the initialinvestigation, or in front of another criminal court in the same case. Thistestimony will be treated as though it were given before the court.

250. Id art. 173:If the witness is excused due to illness, or any other reason for his inability toattend, from giving his testimony, the court, after informing the parties, maydelegate a member of the court, an investigative judge or misdemeanour judge, totravel to the witness's location to hear the witness and send a written report to thecourt.The parties may attend in person or through representatives and direct thequestions they think appropriate. If, after the transfer or sending of a judge to thelocation of the witness, the reason is deemed not to be valid, a penalty may beimposed as prescribed by law for failure to attend.

2010


Unlike the more intimate-and closed-nature of the investigative hearingconducted by an IJ, the trial is an open proceeding.25 However, as with theinvestigative hearing, the trial judges own their courtroom. Thus, they may:

* remove the defendant from the proceedings for being unruly,252

* (except in capital cases) order the defendant released or heldduring the proceedings,

253

* hold audience members in contempt for leaving an open sessionof court,

2 5 4

255* cut off irrelevant argument or testimony,* exclude witnesses from court while not testifying,256 and

* suspend proceedings, as they deem necessary. 7

Likewise, the trial judges also have considerable leeway in limiting theirconsideration of testimony and argument.2 As to information not available

251. Id. art. 152:Trial sessions must be open unless the court decides that all or part should beheld in private and not attended by anyone not connected with the cases, forreasons of security or maintaining decency. It may forbid the attendance ofcertain groups of people.

252. Id. art. 158:The accused may not be removed from the court room during consideration ofthe case unless he violates the rules of the court, in which case procedurescontinue as if he were present. The court must keep him informed of theprocedures which took place in his absence.

253. Id art. 157:The court may, at any time whilst the case is being considered, order the releaseof the accused with or without bail unless he is accused of an offence punishableby death. It may order his arrest or detention following any release, stating thereasons for this in the order issued.

254. Id. art. 153:The court and those entrusted with its administration may prohibit any individualfrom leaving the court room, and if someone leaves in violation of thisprohibition, without the permission of the court, the court may rule immediatelyfor detention for 24 hours or a fine not exceeding 3 dinars, with no right to appealagainst this ruling. The court may however issue a pardon before the end of thesession and retract the ruling issued.

255. Id. art. 154:The court may prevent the parties and their representatives speaking at unduelength or speaking outside the subject of the case, repeating statements, violatingguidelines or making accusations against another party or a person outside thecase who is unable to put forward a defence.

256. Id. art. 168(C):It is permissible to remove the witness whilst the testimony of another witness isbeing heard ....

257. Id. art. 162:The court may decide on the suspension of a case for a suitable period ifnecessitated by circumstances. It must inform the accused, other litigants andwitnesses who have not yet testified that they are to attend the session when itresumes and the court will meet the cost of their expenses.

VOL. 39:1


before the court, the trial court has subpoena power2 59 and can order additionalinvestigation, 26 including the appointment of experts.261 Subpoenaed items mustbe presented to all parties present at the trial.262 If a judge is replaced during thecourse of the trial, the new judge need not start a de novo review of the case: it iswithin his discretion to base his judgment on the procedures and investigationsundertaken by his predecessor.263

Notwithstanding all of the foregoing powers of the trial court, the Codenevertheless accords a minimum level of dignity to the defendant, even as it offersa nod to the adage that one is considered innocent until proved guilty:264 thedefendant is not subject to physical restraints while in the courtroom. 2 6

1

1. The Formal Charge

Perhaps the most vivid difference between common law and civil lawcriminal trials is in the timing of the charge. Although the accused is certainlyaware of the type of offense the IJ is investigating, he may not know specificallywith which crime the IJ will charge him. In Iraqi courts, it is not until after the trialjudge has taken and considered all evidence, that the trial judge officially

258. Compare Criminal Procedure Code, art. 154, supra note 255 (trial court may limit testimonyor argument for undue length, offering irrelevant information, repeating statements, violatingguidelines, or making accusations about persons not before the court) and Criminal Procedure Code,art. 64, supra note 97 (investigative judge may only restrict testimony that is irrelevant, offensive, orharmful to security).

259. Criminal Procedure Code, art. 163:The court may order that any investigatory procedure or procedures be taken, orthat any person be ordered to hand over information, documents, or items, if thatwill assist the investigation. In the event of a refusal to hand over something inhis possession, a person should be transferred to an investigative judge for legalprocedures to be taken against him.

260. Id.; see also id. art. 165:The court may proceed to conduct an investigation if it appears that this willassist in establishing the truth and should allow the litigants to attend theinvestigation.

261. Id. art. 166:The court may appoint one or more experts in matters requiring their opinion andmay permit the wages of the expert to be borne by the treasury as long as theprice is not unreasonably high.

262. Id art. 164:The court orders that items seized be brought to the courtroom wherever possible,where the accused and other parties are able to see and note them.

263. Id art. 161:If the case is being reviewed by a judge whose place is taken by another judge,the second judge may base his judgement on procedures and investigationsundertaken by his predecessor or he may repeat these procedures andinvestigations himself

264. In fact, the current Constitution, adopted long after the Code, specifically provides: "Theaccused is innocent until proven guilty in a fair legal trial." Article 19, Section 5, DoustourJoumhouriat al-Iraq [The Constitution of the Republic of Iraq] of 2005.

265. Criminal Procedure Code, art. 156:The accused attends the court room without restraint or handcuffs and the courtmust use necessary means to ensure the security of the court room.

2010


determines what crime, if any, the defendant actually committed.266 This practiceobviates the need for litigation of issues, such as specificity of charges, lesserincluded offenses, multipliciousness of charges, and the like. After the facts arefirmly established in the minds of the judges, they can turn their legal training tofinding the proper niche for the given facts in the substantive criminal law.

The charge is formalized once all the evidence has been received at trial; itsparameters are not circumscribed by the offense as characterized in the originalarrest warrant or the fmdings of the investigative judge.267 If the complainant has,during the course of the judicial proceedings, withdrawn the complaint, or if thefacts do not validate a finding of guilt on any possible charge, the judges dismissthe case.268 (Such an outcome is fairly unlikely, since the IJ would presumablyhave weeded out any such cases.) If, however, the judges determine amongthemselves that the facts evidence a crime, the defendant is "charged asappropriate" and asked to enter a plea.269

If there is anything short of a full and valid confession-the defendant pleadsnot guilty, appears confused by the proceedings, does not offer a defense, etc.-"the case goes to trial." The defendant is afforded an opportunity to present anyvalid witnesses and evidence he might have.270 Following the defense case, the

266. Id. art. 203.267. Id. art. 187:

A. The charge is written down on a special piece of paper in the name of thejudge issuing it, with his position and includes the name of the accused, hisidentity details, the place and time of commission of the offence and a legaldescription of the offence and the name of the victim or of the item against whichthe offence was committed, the way in which it was committed and the legalparagraphs which apply. The paper is dated and signed by the judge or head ofthe court.B. In setting out the description for the offence, the court is not restricted to thedefinition in the arrest warrant or summons or transfer decision.

268. Id. art. 181:A. If the complainant withdraws the complaint or the court considers that thecomplaint has been withdrawn in accordance with the provisions of Article 150[regarding abandonment or withdrawal of claims] and if the offence is one inwhich conciliation is permissible without a court agreement, the complaint isconsidered as rejected.B. If, after taking steps to clarify the situation as described in the Articles above,it becomes clear to the court that the evidence does not point to the accusedhaving committed the offence with which he is charged, his release is ordered.

269. Id. art. 181(C):If it appears to the court, after the aforementioned steps have been taken, that theevidence indicates that the accused has committed the offence being considered,then he is charged as appropriate, the charge is read to him and clarified, and heis asked to enter a plea.

270. Id. art. 181(D):If he denies the charge or does not offer a defence, if he requests a trial or if thecourt considers that his confession is confused, or that he does not understand theconsequences or if the offence is punishable by death then the case goes to trial,defence witnesses are heard and the remaining evidence in his defence is heard,unless the court finds it to be an unjustified attempt to impede the investigation or

VOL. 39:1


parties, the prosecutor, and the defense counsel may each make a closingstatement; 271 however, the defendant gets the last word.272

If the defendant confesses to the charge, the court hears him out and the caseis fimished-there is no need for further evidence.273 Several provisions in theCode are in place to ensure that the confession is valid: the court cannot considerany part of a confession it deems to be the product of coercion,274 and the court canparse a non-coerced confession and accept-at face value only-those parts itdeems truthful and corroborated, 275 even if the confession was extra-judicial. 276 Italso follows that the court would have to find the defendant competent the same asany other witness. 277 Ultimately, however, harkening back to the concept that thejudges are masters of their domain, the judges can accept any confession they, intheir discretion, deem valid.278

In the end, while ex parte communications and a judge's personal extra-judicial knowledge may not have any bearing on a verdict,279 the judges are free to

to mislead the court ....271. Id. art. 181(D):

When this has been completed, the commentary of the other parties, the PublicProsecution, and the defence of the accused are heard ....

272. Id art. 181(E):The defendant should be the last to speak in the judicial investigation or trial.

273. Id. art. 181(D):If the defendant confesses to the charge against him and the court is satisfied ofthe truth of his confession and that he understands its implications, then the courtlistens to his defence and issues a judgement in the case without any requirementfor further evidence ....

274. Id art. 218:It is stipulated that an admission must not have been extracted by coercion.

275. Id art. 219:It is permissible for the court to divide the admission up, accept the part which itbelieves to be correct and reject the rest. It is not however permissible tointerpret the admission or divide it into parts if it is the only piece of evidence inthe case.

276. Id. art. 217:A. The court has absolute authority in evaluating the accused's admission andacting upon it whether it was given in front of the court, in front of theinvestigative judge, during other court hearing of the same case or in anothercase, even if the witness subsequently withdraws his statement. The court canaccept his admission to the [judicial] investigator if there is enough evidence toconvince it that the investigator did not have sufficient time to present theaccused to the [investigative] judge so that his admission could be recorded.B. Admissions may not accepted be [sic] if the conditions stipulated in A are notpresent.

277. Id art. 214The court must decide that the witness is not fit to give testimony if it becomesclear he is unable to remember details of the event or that he is not fully aware ofthe of [sic] value of the testimony he is giving due to his age or his physical orpsychological state.

278. Id. art. 213(C):The court can accept an admission only if it is satisfied with it.

279. Id art. 212:

2010


consider a wide range of information-with the caveat that a conviction cannot bebased on one uncorroborated witness 280 (unless the witness is the defendant21 ).They may consider as substantive evidence all statements made during the trialhearing, hearsay statements made by a victim under threat of death,282 anything inthe investigation dossier forwarded by the investigative judge, and any otherreports of investigation prepared by other investigating officials (as long as theofficial wrote them concurrent with the events "or not long afterward").283

2. The Ruling

After the court gives the defendant the opportunity to make his finalstatement, the case is submitted to the court for a verdict. The court declares aformal recess and "retires." During this recess, the defendant, defense counsel,witnesses, and gallery are ushered from the room, while the judges and prosecutorremain inside. The judges vote and formulate their ruling and, if necessary, thepenalty.28 4 They prepare a formal record of the trial on the spot-there is noverbatim transcript in civil law systems-with a summary of the procedural

The court is not permitted, in its ruling, to rely upon a piece of evidence whichhas not been brought up for discussion or referred to during the hearing, nor is it

permitted to rely on a piece of paper given to it by a litigant without the rest of

the litigants seeing it. The judge cannot give a ruling on the basis of his personal

knowledge.

280. Id art. 213:

A. The court's verdict in a case is based on the extent to which it is satisfied bythe evidence presented during any stage of the inquiry or the hearing. Evidence

includes admissions reports, witness statements, written records of an

interrogation, other official discoveries, reports of experts and technicians,

background information and other legally established evidence.

B. One testimony is not sufficient for a ruling if it is not corroborated by

background information other convincing evidence or a confession from theaccused. The exception to this rule is if the law specifies a particular way of

proving a case, which must be followed.

281. See id. art. 219; see also supra note 275.282. Criminal Procedure Code, art. 216:

The court may accept the statement of any dying victim as evidence relating to

the offence and its perpetrator or any other related matter.

283. Id. art. 220:

A. Reports of investigations and of the collating of evidence, and all the details in

them about procedures of disclosure, searching, and other official reports, areregarded as elements of proof to be taken into consideration by the court. The

litigation can discuss them or prove the opposite.

B. The court must treat events written down by the officials in their reports aspart of their official duties as evidence which corroborates their statement,

provided they wrote them when they occurred or not long afterwards;

see also id art. 213; supra note 280.284. Criminal Procedure Code, art. 223:

A. The court retires before giving its ruling. After it has formulated the ruling,

the hearing is resumed publicly. The ruling is read out to the accused or itscontents are made clear to him.

B. If the verdict is guilty, then the court must issue another ruling at the same

hearing with the penalty and explain them both.

VOL. 39:1


aspects of the case, from investigation through trial.285 The ruling, which detailsthe substantive aspects of the case, lays out the foundational basis of the verdict,the legal ruling, and any dissenting opinions.286 Interestingly, dissenters from aguilty verdict must still opine on an appropriate sentence.287

If the evidence indicates a more serious offense than was charged, or if thereis variance between the charge and the accusation, the charge is withdrawn and anew charge issued in its place.2 8 The court notifies the defendant of the change

289and allows him time to defend against the new charge. On the other hand, if thecourt determines that the defendant has been overcharged, it simply adjusts itsverdict accordingly.290

285. Id art. 222:Everything that takes place in the court is written up in a report. The judge or thechief justice signs all its pages. The report must include the date of each hearing,whether it was public or closed, the names of the judge or judges who consideredthe case, the clerk, the representative of the Public Prosecution, the names of theaccused, and other members of accused's team, the names of the witnesses, areport on the papers which were read out, the requests made, the proceduresconcluded, a summary of rulings, and everything else that occurred during thetrial.

286. Id art. 224:A. The ruling should contain the name of the judge or judges who have issued it,the accused, the other parties and a representative of the Public Prosecution, adescription of the offence he is accused of perpetrating, the paragraph of lawwhich applies, the reasons for the court's ruling and the reasons for the level ofsentence passed. The ruling on the penalty must contain the principal andsubsidiary penalty penalties impose [sic] by the court; the amount ofcompensation for which the court has ruled the accused or person, if any, takingcivil liability to be liable; or the court's decision on the return, confiscation ordestruction of assets or items claimed. The judge or the court's panel signs anddates every ruling and seals them with the seal of the court.B. Rulings are issued on the basis of consensus or a majority of them. All thosedissenting from the majority decision must explain their views in writing.

287. Id. art. 224(C):Any person disagreeing with the guilty ruling must still express his opinion onthe most appropriate penalty for the offence on which a guilty ruling has beenmade.

288. Id. art. 190(A):If it becomes clear that the accused is accused of an offense punishable by a moresevere penalty than that with which he has been charged, or if there is adifference between the descriptions given in the charge and the accusation, thecharge must be withdrawn and a new charge issued.

289. Id. art. 190(B):The court notifies the accused of all changes and amendments made to the chargein accordance with sub-paragraph A and grants a period of time for defence tochallenge this new charge if this is requested.

290. Id. art. 191:If the accused is charged with an offence consisting of a number of actions, and itsubsequently appears that the accused committed only part of the offence, thecourt completes the trial and issues a verdict without the need for a new charge tobe issued.

2010


Once the paperwork is completed (normally a period lasting no more than fiveto ten minutes), the hearing is reconvened; the defendant is notified of the verdictand (if applicable) the penalty.291 Upon conviction of a capital offense, the courtalso notifies the defendant of the automatic appeal process.292

The "burden of proof'-to put it in common-law parlance-seems fairlyvague by American standards: if "the court is satisfied that the defendantcommitted the offense of which he is accused, it issues a verdict of guilty and ruleson the penalty to be applied., 293 "If the court is satisfied that the defendant did notcommit the offense of which he is accused or that the action in question is not acriminal offense, a verdict of not guilty is issued., 2 94 On similarly-vaguestandards, the court may also dismiss the charge for lack of evidence,295 or find thedefendant incompetent.296 In the latter three situations, the defendant is released(unless other cases remain pending).297

Although cassation and retrial appeals are available to one convicted in anIraqi criminal trial, Iraqi law provides for definitive finality, both as to procedure298

291. Id art. 181(D):[Following closing statements of all parties and the defendant, t]he end of thetrial is then announced, and the court issues its verdict in the same session or inanother session held soon afterward;

see also id art. 223; supra note 284.292. Criminal Procedure Code, art. 224(D):

If the court issues a death sentence, it must explain to the person given thesentence that his case papers will be sent automatically to the Court of Cassationfor review. He may also appeal against the ruling at the Court of Cassationwithin 30 days, starting from the day after the ruling has been issued.

293. Id art. 182(A):If, after the trial has been conducted as above, the court is satisfied that theaccused committed the offence of which he is accused, it issues a verdict ofguilty and rules on the penalty to be applied.

294. Id art. 182(B):If the court is satisfied that the defendant did not commit the offence of which heis accused or that the action in question is not a criminal offence, a verdict of notguilty is issued.

295. Id. art. 182(C):If it becomes clear to the court that there is insufficient evidence to condemn himthe charge is dropped and he is released.

296. Id. art. 182(D):If it becomes clear to the court that the accused is not legally responsible for hisactions the court issues a judgment of diminished responsibility and follows thesteps stipulated by law.

297. Id art. 182(E):A detainee is released when a verdict of not-guilty, diminished responsibility,release or rejection of the complaint is issued, as long as there is no other legalreason for his detention.

298. Id art. 225:The court is not permitted to retract, alter or change a ruling it has issued exceptto correct a material error. This must be noted down in the margin andconsidered a part of the ruling.

VOL. 39:1


and as to substance. 29 9 Thus, once the court issues a ruling, only clerical changesmay be made and the civil trial can use the finding as conclusive proof of guilt.

G. The Trial, Some Observations

It comes as a shock to most U.S. attorneys that a criminal trial in Iraq lasts onthe order of thirty minutes, and that deliberations take less than five. However,given a good understanding of the entirety of the process leading up to the trial,this should really come as no surprise. In my experience, it was rare that the trialjudges would call live witnesses. 00 Why should they? Their statements had beenduly recorded by a trained investigative judge. Thus, the vast majority of thehearing is comprised of administrative duties: formally reviewing the witnessstatements, questioning the defendant on any previous statements he had made,and propounding the final charge. 0 1 As the judges and prosecutor have alreadyreviewed the case file beforehand, the hearing is really meant to clarify anyconfusion arising from the record. And the deliberations? Because the judges arefamiliar with both the law and the established facts, it would be surprising if it tookthem any longer to agree on a verdict.

I pause here to note one interesting point about Iraqi justice. The UnitedStates Constitution provides criminal defendants with a right to be confronted bytheir accusers.0 2 There is no such provision in Iraqi law. In fact, to the contrary,there is a recognized procedure for informants to be granted anonymity in the mostserious cases. 3 They provide an in camera statement to the IJ and their identitiesare never disclosed to the accused/defendant nor to the public.0 4 Although thiswould be heresy (and hearsay) in a U.S. courtroom, the IJ and trial judges have afiduciary duty to remain impartial. They accord the testimony only as muchweight as they deem appropriate under the law, considering it in conjunction withall other evidence in the case. Still, I cannot help but be cynical myself. Iobserved a trial where, as far as I could understand through the translation, thedefendant-a frumpy man in his sixties-was ultimately convicted of terrorist actsand condemned to hang based on the accusations of one or two anonymous

299. Id. art. 227(A):A final criminal verdict of guilty or not guilty is proof of the event to which theoffense relates, ascribing it to its perpetrator and its legal status.

300. Most of the witness statements are collected by the investigative judge. See supra textaccompanying notes 78-79.

301. Criminal Procedure Code, art. 203; see supra note 266.302. U.S. CONST. amend. VI.303. Criminal Procedure Code, art. 47(B):

If the complaint is about offences against the internal or external security of thestate, crimes of economic sabotage and other crimes punishable by death, lifeimprisonment or temporary imprisonment and the informant asks to remainanonymous, and not to be a witness, the judge has to register this with thenotification in a special record prepared for this purpose, and conduct theinvestigation according to the rules, considering the information included in thenotification without mentioning the informant's identity in the investigativepaper.

304. Id.

2010


witnesses. Knowing he would never learn the identity of the complainant, hebegged the court to consider that it might be, as he supposed, the vindictiveaccusation of his estranged wife. In the end, either the informant was not his wifeor the judges believed her testimony over his plaintive protests.

III. POST-TRiAL ISSUES

A. Cassation

The Court of Cassation is an appellate court with "jurisdiction to reviewprovisions and rulings issued on felonies, misdemeanors, and other cases stipulatedby law., 30 5 It conducts mandatory review of all capital and life imprisonmentcases.30 6 Additionally, any party-the prosecutor, the accused, the complainant,the civil plaintiff-can appeal the substantive ruling or judgment in a finalizedcase. 30 7 The Cassation Court can also review a case sua sponte.30 8 Mistakes in theapplication or interpretation of the law, as well as material procedural errors, can

305. Id art. 138(C); see supra note 227.306. Criminal Procedure Code, art. 254(A):

If the Felony Court has issued a sentence of death or life imprisonment in thepresence of the accused, it must send a file on the case to the appellate courtwithin ten days of the issue of the judgment, so that it can be reviewed forcassation, even if an appeal has not been lodged.

307. Id. art. 249(A):The Public Prosecutor, the accused, the complainant, the civil plaintiff and theperson who is liable under civil law have the right to appeal to the Court ofCassation against the provisions, decisions and judgments issued by the Court ofFelonies on a misdemeanor or felony, if it was based on a breach of the law or amistake in the application of the law or in its interpretation, or if there was afundamental error in the standard procedures or in the assessment of the evidenceor of the penalty, and this error influenced the judgment.

The civil plaintiff and the person with civil liability can appeal the correlative civil rulings on the non-criminal side of the case. See id art. 25 1(A).

308. Id. art. 264(A):In addition to the provisions put forward, the Court of Cassation may, either of itsown accord or in response to a request from the Public Prosecution or anyoneelse connected with the case, ask for the file on any criminal case to check theprovisions and rulings issued on it, as well as the procedures and orders. In thiscase, it has the authority stipulated in this decision to consider an appeal,although it may not reverse a finding of not guilty or increase the severity of thepenalty, unless it is requested so to do within 30 days from the date of issue ofthe judgment or ruling.

VOL. 39:1


be appealed, 30 9 but jurisdictional or detention determinations cannot.310 An appealpetition for any ruling incorporates all prior related judgments or decisions.1

An appellant must submit the petition for appeal through official channelswithin thirty days following the date of judgment.3 12 The court issuing thedecision being appealed is responsible for forwarding the case file to the Court of

* 313Cassation. The court must also automatically forward files on cases resulting insentences of death or life imprisonment within ten days. 314

When the Court of Cassation receives an appeal, it solicits review and inputfrom the Public Prosecutor,315 and considers any arguments made by the parties.316

309. Id art. 249(B):A mistake in the proceedings cannot be ignored unless it has not been damagingto the defense of the accused.

310. Id. art. 249(C):No individual appeal for cassation will be accepted over decisions issued onmatters ofjurisdiction, over preparatory and administrative decisions or any otherdecision on which there has not been a ruling in the case, unless it is subject to ahalt in progress in the case; decisions involving arrest, detention and release onbail, or release without bail are also excluded.

311. Id. art. 250:An appeal against a judgment or decision on which there has been a ruling in thecase must include all the judgments and decisions already issued or connectedwith it.

312. Id art. 252:A. The appeal takes place by means of a petition presented by the petitioner, orhis legal representative, to the criminal court which issued the judgment, to anyother criminal court, or directly to the Court of Cassation, within a period ofthirty days, starting from the day after the judgment was issued, if in the presenceof the parties, or from the date it was regarded as having the status of beingissued in the presence of the parties, if it was in absentia.B. If the petitioner is in prison, in detention, or in any way inhibited, he maypresent the petition through a prison, detention centre or appropriate official.C. The petition contains the name of the petitioner, a summary of the judgmentagainst him and its date, the name of the court which issued the judgment, thegrounds on which the appeal is based and the final result.D. The petitioner may show the grounds for the appeal separately on the petition,or he may give new grounds, before the decision is made. It is the responsibilityof all parties involved in the case to present their own written statements andapplications.

313. Id art. 253:It is up to the court that issued the judgment or decision for cassation to send afile on the case to the Court of Cassation, as soon as an appeal petition has beenpresented to it, or as soon as the Court of Cassation calls for it, in pursuance ofArticle 249, Sub-paragraph C.

314. Id art. 254(A); see supra note 306.315. Criminal Procedure Code, art. 255:

In accordance with Article 254, the Court of Cassation sends the case file to theChief Prosecutor's Office, immediately upon its receipt together with the groundsfor the appeal, petitions and statements received from the parties involved in thecase, presenting their demands and queries about the judgment or decision within20 days of their receipt.

316. Id. art. 254(C):

2010


The Court can summon the parties (the accused, the plaintiff, the civil plaintiff, and317the Public Prosecutor) as it deems necessary.

The Court has plenary authority to correct jurisdictional problems in a case"'and to change the substantive outcome, including reformation of the penalty andredefinition of the offense to conform to the facts adduced by the investigative andtrial judges.3 19 It may confirm a verdict of guilty vel non, confirm or reduce anadjudged penalty, order a new trial-and even reverse a finding of not guilty orreturn a case for consideration of a higher sentence.12

0 Regardless of the action ittakes, the court must identify the grounds for its decision.321

The appellate court shall accept papers submitted by the accused and thoseinvolved in the case before it issues its decision.

317. Id. art. 258:A. If it appears to the Court of Cassation that an appeal against a judgment ordecision issued by the criminal court has not been presented within the periodspecified in law, it will confirm its formal rejection.B. It is up to the Court of Cassation to summon the accused, the plaintiff, the civilplaintiff or person with civil liability (or both), or the representative of the PublicProsecution to hear their statements or for any purpose it requires in order toobtain the truth.

318. Id. art. 261:If the Court of Cassation reverses the verdict issued by a court which does nothave jurisdiction, the case is transferred to the court which does have jurisdictionand the court which issued the verdict is given notification.

319. Id. art. 260:The Court of Cassation may change the legal description of the offence for whicha verdict of guilty has been issued against the accused to another descriptionwhich corresponds with the nature of the act committed and may pronounce himguilty in accordance with the paragraph of the law which applies to this action,and review the penalty to see if it is appropriate or to make is more lenient.

320. Id. art. 259(A):It is up to the Court of Cassation, after checking the case documentation, to issueits decision on the matter in one of the following ways:

1. Confirm the ruling on the evidence presented and the principal and anysupplementary penalties passed, as well as any other legal clauses;2. Confirm the ruling of not guilty, conciliation, diminished responsibility orthe decision to discharge, or any other ruling or decision in the case;3. Confirm the conviction with a reduced penalty;4. Confirm the conviction and return the documents, for review of thepenalty, with a view to increasing its severity;5. Return the documents to the Court once again to review the verdict of notguilty, with a view to passing a sentence;6. Reverse the guilty verdict and the principal and supplementary penalties,and any other legal judgments, with a view to passing a verdict of not guilty,annulling the charge and releasing the accused.7. Reverse the conviction ruling and penalty ruling and return thedocumentation to the Court for a re-trial, either complete or partial;8. Reverse the ruling of not guilty, conciliation or diminished responsibility,or the decision to discharge, or any other ruling or decision in the case,return the documentation for a re-trial or a repeat judicial investigation.9. Confirm the ruling issued in a civil case, reverse it completely, or reducethe amount of the penalty awarded, or return the ruling to the court to

VOL. 39:1


During the pendency of an appeal, the defendant is still subject toimplementation of the adjudged sentence (other than death).3 22

In addition to appeals of final verdicts, the prosecutor may submit aninterlocutory appeal, requesting that the Court terminate a case, temporarily or

323permanently, if he or she deems that justice so requires. If the Court orders apermanent suspension of proceedings pursuant to such an appeal, this ruling isequivalent to a not-guilty verdict (but it does not affect any civil actions arising outof the same incident).324

Parties to the case may request a correction of the Cassation decision onsubstantive grounds,3 25 but no recognizable right of action exists for correction of

complete the investigation, or to hold a review with the aim of increasing theamount of the penalty awarded.

321. Id. art. 259(B):The Court of Cassation will explain in its decision the grounds on which it isbased.

322. Id. art. 256:An application for cassation over judgments and decisions does not implysuspension of their implementation unless the law so stipulates.

323. Id. art. 199:A. The Chief Prosecutor may request that the Court of Cassation put an end tothe procedures of examination or trial, either temporarily or permanently, in anycase up to the point of the issue of the final verdict, if there is a reason justifyingthis action.B. The request must include the justification and, when submitted to the Court ofCassation, the papers of the court are requested, and the investigative judge orcourt must send them for examination on the case.C. The Court of Cassation checks the request and decides whether to accept itand suspend proceedings permanently or temporarily for a period not exceedingthree years, if he finds justification. If there is no justification, the request will berefused.D. After the Court of Cassation has issued its decision, the file is returned and acopy of the decision is sent to the Director of Public Prosecutions.E. If the decision stipulates a suspension of proceedings, the investigative judgeor court must release the accused if he is detained. The issue of this decision willnot prejudice the right of the judicial authorities or court to confiscate items, thepossession of which is illegal.F. The decision to suspend proceedings temporarily may be converted to one ofpermanent suspension in accordance with the provisions stipulated in this section.

324. Id. art. 200:A. The investigation and trial will resume after the end of a period of temporarysuspension from the point where they stopped.B. The decision to suspend proceedings permanently has the same legal effect asa not guilty verdict, although it does not prejudice potential damages from a civilcase raised, or the payment of compensation.

325. Id. art. 266:A. The Public Prosecution, the convicted person and all others connected with acriminal case may request the correction of a legal error in the decision issued bythe Court of Cassation, provided the request is submitted within 30 days, countedfrom the date a convicted, imprisoned or detained person is notified of thecassation decision or, otherwise, from the date the court dealing with the casereceives the case documentation from the Court of Cassation.

2010


decisions ordering additional procedures.326 Only one request may be accepted(per party?).327 The Court's decision to accept or reject a request for correction isfinal-it cannot be corrected.328

B. Retrial

Retrial may be requested through the Public Prosecutor 329 in the followingcircumstances: the defendant's putative murder victim has been found alive;another person has subsequently been convicted of the same crime; the defendant'sconviction was based on an expert's testimony or document's authenticity which islater proven to be false; previously-unknown exculpatory facts have come to light;the conviction was based on another judgment subsequently quashed or annulled;or the offense or sentence no longer applies to the accused.330 If a request forretrial is denied, it may not be resubmitted without citing additional grounds.331

B. The request is submitted directly to the Court of Cassation, or through thecourt, or prison or centre administration, if the convicted person is already inprison or detained.

326. Id art. 267:A request for correction is not accepted for the following decisions:

A. A decision for reversal and re-trial or a second judicial investigation;B. A decision issued for the return of case documentation for review of thejudgment;C. A decision or judgment issued by the Court of Cassation General Board.

327. Id art. 269(A):A request for correction can only be accepted on one occasion.

328. Id. art. 269(B):Decisions to turn down or accept a request for correction cannot be correctedafter issue.

329. Id. art. 271:A request for a re-trial is submitted to the Public Prosecution by the personconvicted, or whoever represents him in law. If the person convicted has died therequest can be submitted by his wife or one of his relatives, but the request mustclearly explain the ground on which it is based and be accompanied bysupporting documentation.

330. Id. art. 270:A re-trial can be requested for a case which resulted in a sentence or impositionof penalties for a felony or misdemeanor under the following circumstances:

A. If the accused was convicted of murder and the person for whose murderhe was convicted is found alive;B. If a person was convicted of an offense and a judgment was later issuedagainst another person for committing the same offence since one of the twojudgments must be against a person innocent of the offense;C. If a person is convicted on the basis of the testimony of an expert or theopinion of a specialist, or document, and later a definitive judgment is issuedagainst the witness or expert on the basis of having borne false witness, orthe document is proven to be a forgery;D. If after the judgment is issued, facts come to light, or documents arepresented which were not known at the time of the trial, and these prove theinnocence of the convicted person.E. If the judgment was based on a judgment which was quashed or annulledby lawful means.F. If a guilty or not guilty judgment, or a final decision for discharge was

VOL. 39:1


After the petition is submitted, the Public Prosecutor reviews the case file andsubmits an opinion on the merits of the petition to the Court of Cassation.33 2 TheCourt of Cassation then reviews the case file and the evidence supporting therequest 333 to determine whether the legal preconditions for retrial are satisfied.334

The retrying court conducts a new trial, which can result in partial or fullannulment of the previous judgment, a confirmation of the previous findings andsentence, or affirmation of the conviction with a new sentence.335 As with anapplication for cassation,336 the defendant is subject to the sentence originallyadjudged during the petition review and any retrial process: the grant of a retrialpetition does not estop the enforcement of any penalty except death.337 Any newsentence adjudged cannot exceed the original sentence 338 except, presumably incases where new evidence of additional crimes has also come to light.

An annulment results in the return of the defendant to his status quo ante inall respects. 33 9 Thus, a retrial proceeding continues despite the death of the

issued on the basis of a criminal act, either separate or related to the originaloffence;G. If for any lawful reason the offence or sentence no longer apply to theaccused.

331. Id art. 279:If the request for a re-trial is turned down, or if a decision is issued for non-interference with the original judgment, the request cannot be submitted for asecond time, on exactly the same grounds as were used in the first request.

332. Id art. 272:The Public Prosecution will carry out an examination of the grounds supportingthe request and will check the case documentation. He then submits the papers,together with his assessment, to the Court of Cassation as quickly as possible.

333. Id. art. 274:The Court of Cassation reviews the request by carrying out an inspection of thecase documentation and it is up to the court to undertake whatever inquiries andquestioning of witnesses it considers necessary.

334. Id art. 275:If the Court of Cassation finds that the request for a re-trial fails to satisfy thenecessary legal conditions, it will decide to turn it down. If it finds the requestjustified, it will return the documentation to the court which issued the judgment,or to the court which has taken its place, together with its decision for a re-trial.

335. Id. art. 276:The trial takes place on the basis of the requested re-trial referred back to it, andif it decides there is no just cause to interfere with the original judgment, it issuesa decision accordingly; if however it decides on annulment, either total or partial,and that the person convicted is not guilty, it will issue a new judgment, but thiswill not be more severe in its sentence than the previous one. Its judgment willbe in accordance with legal procedures.

336. Id art. 256; see supra note 322.337. Criminal Procedure Code, art. 273:

The request for a re-trial can only halt implementation of a sentence if it was inrespect of [sic] the death penalty.


Following the annulment of a judgment, all its civil or criminal consequences areremoved, either in total or in part, and the amount of any fine or compensation is

2010


convicted defendant3 4 -- presumably to allow posthumous exoneration and theconcomitant restoration of civil and property rights.

C. Custody and Fines

Sentences run from the date of implementation until noon on the date ofrelease.3 41 Time served in pretrial detention may offset either a sentence ofimprisonment34 2 or a fine. 141 On the other hand, failure to pay a fine may result inthe fine being converted to a specific amount of imprisonment time.344 Sentencesof married couples where each spouse is convicted of crimes may, upon request

returned together with any impounded or confiscated property. If such items areno longer present, their value is paid out, unless the confiscation was not a legalduty.

340. Id. art. 277:If the person convicted has died, or if he dies after the request has beensubmitted, the court continues with the measures for a re-trial and appointssomeone to be responsible for the defence, if the person who requested the re-trial had not already appointed someone to represent his defense. The court thenissues its decision not to interfere with the original judgment, or for annulment,either in full or in part, or for a declaration of not guilty on the part of thedeceased. Its decision will be in accordance with legal procedures.

341. Id. art. 294(A):The sentence is calculated from the day it is implemented against the convicteduntil noon on the day he is discharged.

342. Id. art. 295:The period of detention is deducted from the period of the sentence issued againstthe convicted person for the same offence. If there are several offences withinthe same case, this period is deducted from the least severe penalty.

343. Id. art. 298:If a person is sentenced to a fine only, and he has already been detained for theoffence of which he has been convicted, the amount of the fine can be reducedfor every day he was detained. If the person is sentenced to imprisonment and afine, and the period he spent in detention is longer than the period of the prisonsentence, the amount of the fine is to be reduced by one half of one dinar forevery extra day served. If the number of days in question adds up to exceed theamount of the fine payable, then the court can decide to discharge him.

344. Id. art. 299:A. If a person is sentenced to a fine, whether or not with imprisonment as well,and he does not pay the money, the court will sentence him to imprisonment forhalf of the maximum period for the offense concerned, if he was sentenced toboth prison and a fine.B. If an offense was punished by a fine only, the period of imprisonment towhich the court can sentence the accused in the event of the fine not being paid isreduced proportionally to the amount outstanding. However the total period ofthe prison sentence must not exceed 2 years.C. The prison sentence comes to an end, in the event of non-payment of the fine,upon the discharge of the fine, or a part of it relative to the remainder of thesentence.D. Payment of the fine, or a portion of it, can be paid to the court, police stationor prison administration, and when this happens the convicted person can bedischarged immediately.

VOL. 39:1


(and posting of appropriate bail),345 be ordered to be served consecutively if theyhave responsibility for a child under twelve years old.346

D. Termination of a Criminal Case

With regard to the termination of a case, the Code provides:

A criminal case is concluded upon the death of the accused, the issue ofa guilty or not guilty judgment, or a judgment or decision of diminishedresponsibility for the offence concerned, or a final decision for dischargeof the accused or a pardon, or the permanent cessation of proceedings,or for other reasons stipulated in law.347

E. Death Penalty

In capital cases, the condemned is imprisoned pending the final processing ofhis case. 348 There is an automatic review of the matter by both the Cassation Courtand the head of State.349 An execution may not take place until four monthspostpartum for a pregnant female,350 on an official holiday or a religious festival

345. Id. art. 297:The decision to postpone implementation of a sentence is issued in accordancewith Article 296 by the court which issued the sentence, in response to therequest of the convicted person. The court will demand bail to guarantee that hereturns to serve the sentence upon expiry of the period of time in question. Thecourt calculates the amount of the bail and includes it in the decision issuedgranting the postponement of implementation. It is the responsibility of the courtto make appropriate arrangements in this way to ensure the convicted persondoes not run away.

346. Id art. 296:If a man and his wife are both awarded custodial sentences for a period of morethan one year for different offenses, and they have not been in prison before,implementation of the sentence with regard to one of them can be postponed ifthey have responsibility for a young child of less than 12 years and they have afixed place of residence.

347. Id art. 300.348. Id art. 285(A):

The person condemned to death is placed in prison until steps have been taken forcarrying out the sentence.

349. Id art. 286:If the Court of Cassation confirms the death sentence as issued, it will send thecase file to the Prime Minister, who is responsible for passing it on to thePresident of the Republic to seek the necessary decree for carrying out thesentence.The President of the Republic issues the decree for carrying out the sentence, orfor commuting it, or for pardoning the condemned person. If he issues the decreefor implementation, the Prime Minister issues an order to that effect, includingthe decree of the Republic, in accordance with legal provisions.

350. Id art. 287:A. If the condemned person is pregnant when the order for implementationarrives, it is the responsibility of the prison administration to inform the head ofthe Chief Prosecutor to present a notification to the Minister of Justice to delayexecution of the sentence, or to reduce it. The Minister of Justice then submitsthis notification to the President of the Republic. Implementation of the sentenceis delayed until another order is issued by the Minister of Justice in accordance

2010


pertinent to the condemned,351 or until the condemned has made a final confession(if his religion so dictates). 2 The execution is carried out by a reading of thedeath decree,353 a taking of any last statement of the condemned, 354 and thehanging-the sole authorized means of execution,355 followed by the obligatoryfinal paperwork annotating the event.356 The condemned's relatives are entitled tovisit the day before the execution 357 and to receive the body afterward.358 If they

with the decision of the President of the Republic. If the renewed order rules forimplementation of the death sentence, it is not carried out until four months afterthe date of delivery of the child, whether the delivery is before or after the arrivalof the order.B. The judgment in sub-paragraph A is applicable to a condemned person whosechild is delivered before the arrival of the order for implementation if the periodof four months from the date of her confinement has not expired. The sentence isnot carried out until four months have elapsed from the date of her confinement,even if the renewed order for implementation arrives.

351. Id. art. 290:The death penalty cannot be carried out on official holidays and special festivalsconnected with the religion of the condemned person.

352. Id. art. 292:If the religion of the condemned person requires him to make confession beforedeath, the necessary arrangements are to be made for him to meet a cleric of hisreligion.

353. Id. art. 289(A):The director of the prison reads the Republic decree for the implementation of thesentence to the condemned person at the place of execution, so that the otherspresent can hear.

354. Id. art. 289(B):If the condemned person wishes to make a statement, the judge notes down whatis said and this is endorsed by the other members present.

355. Id. art. 288:The sentence of death is carried out by hanging within the prison, or any otherplace in accordance with the law after the issue of the decree of the President ofthe Republic for the sentence to be carried out in accordance with Article 286.The execution is witnessed by the Implementation Board, comprising aMisdemeanor Court judge, a member of the Public Prosecution, if available, arepresentative of the Ministry of the Interior, the director of the prison and theprison doctor, or any other doctor delegated by the Ministry of Health. Theaccused's legal representative is excused from attendance if he so requests.

356. Id. art. 289(C):Once sentence has been carried out, the director of the prison signs a form, onwhich he [sic] doctor confirms death, and the time this took place, and theremainder of those resent [sic] sign the document accordingly.

357. Id. art. 291:It is the responsibility of the relatives of the condemned person to visit on the daybefore sentence is to be carried out. It is the duty of the prison administration toinfo [sic] them of the date accordingly.

358. Id. art. 293:The corpse of the executed person is handed over to relatives if they so request.Otherwise the prison authorities will carry out the burial at government expense,but there will be no funeral ceremony.

VOL. 39:1


decline to accept the body, it is given an ignominious burial at governmentexpense.

35 9

IV. MISCELLANY

The goal of this article has been to provide a broad overview of theinvestigation and trial process in Iraq. There are some topics, however, that are soesoteric or not germane to that goal as to merit little discussion. Thus, thefollowing have not been discussed at length elsewhere:

* Seizure of a felon's property is authorized.360 Seizure of anabsconded accused felon's property is authorized to induce himto come forward.361

Conciliation, a creature unique to civil law systems (in which thedefendant may provide restitution or otherwise provide

359. Id.360. Id. arts. 183-86.361. Id. art. 121:

A. If an arrest warrant issued against the accused for the commission of a felonyis not executed, the investigating judge and criminal court may issue an order forthe seizure of the moveable and immoveable property of the accused. Afterexecution, papers are immediately sent to the Court of Felony, and if supportedby the court, the authorities who decided on the detention will issue a statement,published in the local newspapers, on the television and using other methods ofpublication as appropriate, which states the name of the accused, the offence ofwhich he is accused and the property which has been seized. It will ask him togive himself up to the nearest police station within 3 days. It will also ask thatany person with knowledge of the location of the accused inform the nearestpolice station. If the Court of Felony does not support it, the seizure is cancelled.If the decree of seizure was issued by the Court Felony [sic], it is implemented,and the statement is issued without need for approval from any other authority.B. If the accused does not give himself up within the period stipulated, theauthorities which issued the decree of seizure will deposit moveable assets withthe judicial guard for safekeeping and they will be administered under hissupervision. The immoveable assets will be handed over to the Office forConfiscated Property to administer, in its capacity as property with an absenteeowner. The property will remain confiscated in this way until the death of theaccused is proven; he is sentenced or proved guilty or not liable; he is released; orthe complaint against him is dropped. At that point, the property will be returnedto him or whoever is the rightful owner.C. If the property seized will deteriorate quickly or is expensive to maintain, or ifthe authorities issuing the decree of seizure decide to sell it, it is sold inaccordance with the Law of Implementation based on a memo sent to the personin charge of implementation.D. If the accused gives himself up or is arrested, either the seized property or itsvalue is returned in full.E. Any person to whom an accused person who has absconded owes money on alegal basis, shall be paid monthly from the seized assets at the same rate aspayment was being made before the seizure, by decree of the authorities whichissued the decree of seizure.

2010


satisfaction to the complainant, such that the complainantwithdraws the complaint), is available in the Iraqi system. 362

* Misdemeanor Courts ruling in cases involving only a penalty ofdetention may use the summary trial method in lieu of a morerobust trial.3 63 The summary process entails hearing thecomplainant/plaintiff from the associated civil case, hearing thewitnesses, reading the reports, and listening to the defendant.364

There is no formal charging or plea process.3 65 Instead, the courtissues a verdict-based on whether it "is satisfied" or not that thedefendant committed the offense of which he is accused. 6 6 Themaximum punishment that may be issued following a summarytrial is the maximum penalty for an infraction as set forth in thePenal Code.367

* Iraqi law recognizes a version of the double jeopardy principle:cases that are conclusively fina13 68 usually may not berelitigated.3 69 The exception is those cases in which newevidence is found to show material flaws in the facts presented attrial.370

362. Id arts. 194-98.363. Id. arts. 201-04.364. Id art. 203(A):

The process of a [summary] trial entails the court hearing the testimony of thecomplainant or civil plaintiff, testimony of the witness, reading reports, thenhearing a statement from the accused, if in attendance, without any charge beingmade, and recording a written summary of this, thus covering all aspects of thecase.

365. Id.366. Id art. 203(B)-(C):

B. If the court is satisfied, after taking the steps described in sub-paragraph A,that the accused committed the offense of which he is accused, it issues a guiltyverdict and rules on the penalty to be imposed.C. If the court is satisfied that the accused did not commit the offense of which heis accused, or if there is insufficient evidence for conviction, or if the actionwhich was committed is not a criminal offense, a ruling is made that the accusedbe released.

367. Id art. 204(C):If the court reviews a case of misdemeanor in summary form, it may not give ajudgment exceeding the maximum penalty for an infraction as stipulated in thePenal Code.


There cannot be a return to investigation and court proceedings against theaccused, for whom the criminal case has been concluded, except undercircumstances stipulated in law.

370. Id art. 303:The investigation or court proceedings against an accused may be resumed afterthe criminal case has been closed if, after the issue of the judgment or definitiveor final decision, it emerges that there was an act or consequence of the offensefor which the accuse was tried, or had proceedings taken against him, which was

VOL. 39:1


Regardless of the outcome of a particular case, contraband takenfrom the accused is confiscated.371 Specific provisions describethe handling of other impounded items, depending on theirnature, establishment of ownership, and outcome of the case.372

The following subjects are specifically addressed in the Code, but notdiscussed in this article:

* The relationship of a criminal case to its concomitant civil (tort)case

37 3

* Geographic jurisdiction of the IJ/subject matter jurisdiction ofinvestigating authorities 374

* Bail, and the subsequent confiscation of property in consequenceof its violation

3 75

* Procedural issues related to investigation of cases committed byjuveniles

376

* Procedures for handling misdemeanor breaches of the peace377

* Extradition, foreign service of process, and other extraterritorialissues

378

* Conditional discharge (probationary parole) 379

* Cash sureties380

* Handling of impounded goods381

* Commitment to keep the peace382

* Commitment to good behavior (a program where the prosecutoror an investigative judge can recommend that a recidivist orunemployed person be placed on probation or pay a surety in lieuthereof for one to three years)383

fundamentally different from the facts as presented in the trial.371. Id art. 307:

The discharge of a case for any lawful reason does not prevent the confiscation ofgoods whose possession is prohibited in law.

372. See id. arts. 308-16.373. See id. arts. 10-29.374. See id. arts. 53-55.375. The authority of a judge to order or allow bail or a written pledge is covered in Criminal

Procedure Code, arts. 95-96. Collateral issues involving the inability to make bail or failure to appearafter posting bail are treated at Criminal Procedure Code, arts. 101, 111-22.

376. See id. arts. 233-42.377. See id. arts. 321-30.378. See id. arts. 352-68.379. See id. arts. 331-37.380. See id. arts. 325-30.381. See id. arts. 308-16.382. See i. arts. 317-20.383. See id. arts. 321-24.

2010


Pardon38 4

Finally, it is simply impossible, in an article of this nature, to address themyriad of non-Code issues that impact directly the administration of justice in theIraqi system. Thus, I have consciously avoided a discussion of the hierarchicalstructure of the court system, and the many changes the Coalition ProvisionAuthority made to Iraqi criminal procedure law, including the elimination of thedeath penalty (which was subsequently reinstated by the Council ofRepresentatives). I have also chosen to avoid any significant reference to thesubstantive penal laws of Iraq-or even to the categorization of crimes intofelonies, misdemeanors, and infractions.

384. See id. arts. 338-41.

VOL. 39:1

the iraqi criminal justice system, an introduction

Documents